# CASE DETAILS MUNNA PANDEY v. STATE OF BIHAR

- **Citation:** 2023 INSC 793
- **Court:** Supreme Court of India
- **Decided:** 2023-09-04
- **Case number:** Criminal Appeal Nos. 1271-1272 of 2018
- **Bench:** B.R. Gavai, J.B. Pardiwala, Prashant Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-munna-pandey-v-state-of-bihar-36391
- **Pages:** 59

## Headnote

Issue for consideration: Whether the High Court erred in confi rming
the conviction and death sentence passed by trial court against appellantaccused for off ences punishable u/ss.302, 376, IPC and s.4, POCSO Act,
2012, despite serious lapses in the entire investigation.
Penal Code, 1860 - ss.302, 376 - Protection of Children from Sexual
Off ences Act, 2012 - s.4 - Serious lapses in investigation, confi rmation
of conviction and death sentence - Propriety:
Held: s.162, CrPC does not prevent a Judge from looking into the
record of the police investigation - Being a case of rape and murder of a 10
year old girl and as the evidence was not free from doubt, the Trial Judge
ought to have acquainted himself with the important material and also with
what the only important witnesses of the prosecution had said during the
police investigation - There is nothing in s.162, CrPC which prevents a Trial
Judge from looking into the papers of the chargesheet suo motu and himself
using the statement of a person examined by the police recorded therein for
the purpose of contradicting such person when he gives evidence in favour of
the State as a prosecution witness - The Judge may do this or he may make
over the recorded statement to the lawyer for the accused so that he may use
it for this purpose - Case of the witnesses before the police was that it was
co-accused who had come to the house of the victim on the fateful day and
had taken her to his house to watch TV - All the statements further reveal
that it was co-accused who was found locking the door when the witnesses
enquired with him about the whereabouts of the victim- However, neither
[2023] 11 S.C.R. 1005 : 2023 INSC 793
1005
1006
SUPREME COURT REPORTS
[2023] 11 S.C.R.
the defence counsel nor the public prosecutor nor the presiding offi cer of the
Trial Court and even the High Court thought fi t to look into the aforesaid
aspect of the matter and try to reach to the truth - The presiding offi cer of
the Trial Court remained a mute spectator - It was the duty of the presiding
offi cer to put relevant questions to these witnesses in exercise of his powers
u/s.165, Evidence Act - Impugned judgment set aside - Matter remitted
back to the High Court for deciding the reference u/s.366, CrPC keeping
in mind the serious lapses on the part of the defence in not proving major
contradictions in the form of material omissions surfacing from the oral
evidence of the prosecution witnesses - Code of Criminal Procedure, 1973
- ss.162, 366 - Evidence Act, 1872 - s.165. [Paras 39, 40, 43, 47 and 73]
Code of Criminal Procedure, 1973 - s.162 - Proviso - 'Purpose'
mentioned therein:
Held: s.162 says that no statement made by any person to a police
offi cer in the course of an investigation, whether it be recorded or not, shall
be used for the purpose save as provided in the fi rst proviso to the Section
- The fi rst proviso says that when any witness, whose statement has been
reduced into writing by the police in accordance with the provisions of
the CrPC, is called for the prosecution in inquiry or trial the accused with
the permission of the court may contradict the witnesses in the manner
provided by s.145, Evidence Act - The purpose mentioned in the proviso
is the purpose of contradicting the evidence given in favour of the State by
a prosecution witness in Court by the use of the previous statement made
by such witness to the police offi cer - 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 fi rst part of s.162 relates to
this purpose for which the statement may be used; it does not relate to the
procedure which may be adopted to eff ect this purpose - The proviso which
sets out the limited purpose also mentions the way in which an acc

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CASE DETAILS
MUNNA PANDEY
v.
STATE OF BIHAR
(Criminal Appeal Nos. 1271-1272 of 2018)
SEPTEMBER 04, 2023
[B.R. GAVAI, J.B. PARDIWALA AND
PRASHANT KUMAR MISHRA, JJ.]
HEADNOTES
Issue for consideration: Whether the High Court erred in confi rming
the conviction and death sentence passed by trial court against appellantaccused for off ences punishable u/ss.302, 376, IPC and s.4, POCSO Act,
2012, despite serious lapses in the entire investigation.
Penal Code, 1860 - ss.302, 376 - Protection of Children from Sexual
Off ences Act, 2012 - s.4 - Serious lapses in investigation, confi rmation
of conviction and death sentence - Propriety:
Held: s.162, CrPC does not prevent a Judge from looking into the
record of the police investigation - Being a case of rape and murder of a 10
year old girl and as the evidence was not free from doubt, the Trial Judge
ought to have acquainted himself with the important material and also with
what the only important witnesses of the prosecution had said during the
police investigation - There is nothing in s.162, CrPC which prevents a Trial
Judge from looking into the papers of the chargesheet suo motu and himself
using the statement of a person examined by the police recorded therein for
the purpose of contradicting such person when he gives evidence in favour of
the State as a prosecution witness - The Judge may do this or he may make
over the recorded statement to the lawyer for the accused so that he may use
it for this purpose - Case of the witnesses before the police was that it was
co-accused who had come to the house of the victim on the fateful day and
had taken her to his house to watch TV - All the statements further reveal
that it was co-accused who was found locking the door when the witnesses
enquired with him about the whereabouts of the victim- However, neither
[2023] 11 S.C.R. 1005 : 2023 INSC 793
1005
1006
SUPREME COURT REPORTS
[2023] 11 S.C.R.
the defence counsel nor the public prosecutor nor the presiding offi cer of the
Trial Court and even the High Court thought fi t to look into the aforesaid
aspect of the matter and try to reach to the truth - The presiding offi cer of
the Trial Court remained a mute spectator - It was the duty of the presiding
offi cer to put relevant questions to these witnesses in exercise of his powers
u/s.165, Evidence Act - Impugned judgment set aside - Matter remitted
back to the High Court for deciding the reference u/s.366, CrPC keeping
in mind the serious lapses on the part of the defence in not proving major
contradictions in the form of material omissions surfacing from the oral
evidence of the prosecution witnesses - Code of Criminal Procedure, 1973
- ss.162, 366 - Evidence Act, 1872 - s.165. [Paras 39, 40, 43, 47 and 73]
Code of Criminal Procedure, 1973 - s.162 - Proviso - 'Purpose'
mentioned therein:
Held: s.162 says that no statement made by any person to a police
offi cer in the course of an investigation, whether it be recorded or not, shall
be used for the purpose save as provided in the fi rst proviso to the Section
- The fi rst proviso says that when any witness, whose statement has been
reduced into writing by the police in accordance with the provisions of
the CrPC, is called for the prosecution in inquiry or trial the accused with
the permission of the court may contradict the witnesses in the manner
provided by s.145, Evidence Act - The purpose mentioned in the proviso
is the purpose of contradicting the evidence given in favour of the State by
a prosecution witness in Court by the use of the previous statement made
by such witness to the police offi cer - 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 fi rst part of s.162 relates to
this purpose for which the statement may be used; it does not relate to the
procedure which may be adopted to eff ect this purpose - The proviso which
sets out the limited purpose also mentions the way in which an accused
person may contradict the witness with his previous statement made to the
Police, but it does not in any other way aff ect the power that lies in the Court
to look into documents or put questions to witnesses suo motu - Evidence
Act, 1872 - s.165. [Para 46]
1007
Practice and Procedure - Criminal Law - Duty of Presiding Judge
- Evidence Act, 1872 - s.165:
Held: In many sessions cases when an advocate appointed by the
Court appears and particularly when a junior advocate not having much
experience of the procedure of the Court, has been appointed to conduct
the defence of an accused person, it is the duty of the Presiding Judge to
draw his attention to the statutory provisions of s.145, Evidence Act - No
Court should allow a witness to be contradicted by reference to the previous
statement in writing or reduced to writing unless the procedure set out in
s.145, Evidence Act has been followed - It is possible that if the attention of
the witness is drawn to these portions with reference to which it is proposed
to contradict him, he may be able to give a perfectly satisfactory explanation
and in that event the portion in the previous statement which would otherwise
be contradictory would no longer go to contradict or challenge the testimony
of the witness - In a case like the present one, where the evidence given in
Court implicates persons who not mentioned in the FIR or police statements,
it is always advisable and far more important for the Trial Judge to look into
the police papers in order to ascertain whether the persons implicated by
witnesses, at the trial had been implicated by them during the investigation.
[Paras 47 and 48]
Code of Criminal Procedure, 1973 - s.53(1), 53A - Medical
examination - Importance - Circumstantial evidence - Rape victim
dead:
Held: s.53(1) enables a police offi cer not below the rank of subinspector 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 aff ord such evidence, whenever a person is arrested on
a charge of committing an off ence of such a nature that there are reasonable
grounds for believing that an examination of his person will aff ord evidence
as to the commission of an off ence - By Amendment Act 25 of 2005, a new
Explanation was substituted u/s.53, in the place of the original Explanation
- Simultaneously with the substitution of a new Explanation u/s.53, Act
25 of 2005 also inserted a new provision i.e. s.53A - Medical examination
of an accused assumes great importance in cases where the victim of rape
is dead and the off ence is sought to be established only by circumstantial
evidence - Penal Code, 1860 - ss.302, 376 - Code of Criminal Procedure
(Amendment) Act, 2005. [Paras 25-27 and 29]
MUNNA PANDEY v. STATE OF BIHAR
1008
SUPREME COURT REPORTS
[2023] 11 S.C.R.
Code of Criminal Procedure, 1973 - s.313 - Additional
circumstances relied upon, not put to the appellant - Impropriety:
Held: The further statement of the appellant-convict was recorded
u/s. 313 - It was shocking to see the manner in which the Trial Court recorded
the same - In all, four questions were put to the appellant to enable him to
explain the incriminating circumstances pointing towards his complicity in
the alleged crime - However, for holding the appellant guilty of the alleged
crime, the Trial Court looked into the additional circumstances none of
which were put to the appellant so that he could off er a proper explanation
to the same. [Para 32]
Evidence Act, 1872 - ss.145, 161 - Duty of defence counsel, public
prosecutor:
Held: It was the duty of the defence counsel to confront the witnesses
with their police statements so as to prove the contradictions in the form
of material omissions and bring them on record - The defence counsel had
no idea how to contradict a witness with his or her police statements in
accordance w/s.145, Evidence Act - Lapse on the part of public prosecutor
is also very unfortunate - The public prosecutor knew that the witnesses
were deposing something contrary to what they had stated before the police
in their statements recorded u/s.161 - It was his duty to bring to the notice
of the witnesses and confront them with the same even without declaring
them as hostile - If the witness was not confronted with that part of the
statement with which the defence wanted to contradict him, then the Court
cannot suo motu make use of statements to police not proved in compliance
w/s.145, Evidence Act - Therefore, it is of utmost importance to prove
all major contradictions in the form of material omissions in accordance
with the procedure as established u/s.145, Evidence Act and bring them on
record - It is the duty of the defence counsel to do so . [Paras 41 and 50]
Code of Criminal Procedure, 1973 - Chapter XXVIII- ss.366371; Chapter XXIX- ss.372-394 - Role and duty of High Court in
confi rmation cases:
Held: Power to acquit the person can be exercised by the High Court
even without there being any substantive appeal on the part of the accused
challenging his conviction - To that extent, the proceedings under Chapter
XXVIII which deal with "submission of death sentences for confi rmation"
1009
is a proceeding in continuation of the trial - ss.367, 368 entitle the High
Court to direct further enquiry or to take additional evidence and the High
Court may, in a given case, even acquit the accused person - Scope of
the chapter is wider - Chapter XXIX deals with "Appeals" - s.391 also
entitles the appellate court to take further evidence or direct such further
evidence to be taken - s.386 then enumerates powers of the appellate court
which inter alia includes the power to "reverse the fi nding and sentence
and acquit or discharge the accused, or order him to be re-tried by a court
of competent jurisdiction subordinate to such appellate court or committed
for trial" - Powers of the appellate court are equally wide - The High Court
in the present case was exercising powers both u/Chapters XXVIII and
XXIX, CrPC - ss.367, 368 make it clear that the duty of the High Court, in
dealing with the reference, is not only to see whether the order passed by
the Sessions Judge is correct, but to examine the case for itself and even
direct a further enquiry or the taking of additional evidence if considered
desirable in order to ascertain the guilt or the innocence of the convicted
person. [Paras 58 and 59]
Code of Criminal Procedure, 1973 - ss.367, 368 and proviso thereto
- Duty of High Court u/s.367:
Held: Under the proviso to s.368, no order of confi rmation is to be
made until the period allowed for preferring the appeal has expired, or, if
an appeal is presented within such period, until such appeal is disposed
of, so that, if an appeal is fi led by a condemned prisoner, that appeal has
to be disposed of before any order is made in the reference confi rming the
sentence of death - In disposing of such an appeal, however, it is necessary
that the High Court should keep in view its duty u/s.367 - It must examine
the appeal record for itself, arrive at a view whether a further enquiry
or taking of additional evidence is desirable or not, and then come to its
own conclusion on the entire material on record whether conviction of
the condemned prisoner is justifi ed and the sentence of death should be
confi rmed. [Para 59]
Criminal Law - Criminal justice system - Accusatorial/adversarial
system:
Held: For the dispensation of criminal justice, India follows the
accusatorial or adversarial system of common law - In the accusatorial or
MUNNA PANDEY v. STATE OF BIHAR
1010
SUPREME COURT REPORTS
[2023] 11 S.C.R.
adversarial system, the accused is presumed to be innocent; prosecution and
defence each put their case; judge acts as an impartial umpire and while
acting as a neutral umpire sees whether the prosecution has been able to
prove its case beyond reasonable doubt or not. [Para 66]
Constitution of India - Article 21 - Free and fair trial, a sine-quanon:
Held: Free and fair trial is sine-qua-non of Article 21 - If the criminal
trial is not free and fair, then the confi dence of the public in the judicial
fairness of a judge and the justice delivery system would be shaken - Denial
to fair trial is as much injustice to the accused as to the victim and the society
- No trial can be treated as a fair trial unless there is an impartial judge
conducting the trial, an honest, able and fair defence counsel and equally
honest, able and fair public prosecutor - A fair trial necessarily includes fair
and proper opportunity to the prosecutor to prove the guilt of the accused
and opportunity to the accused to prove his innocence. [Para 67]
Criminal Law - Criminal justice system - Role of a judge in
dispensation of justice - Discussed. [Para 53, 54, 68 and 70]
Committees - Malimath Committee on Judicial Reforms - Duty of
Courts to search for truth - Observations of the Committee - Discussed.
[Para 69]
LIST OF CITATIONS AND OTHER REFERENCES
Jumman v. State of Punjab AIR 1957 SC 469: Rama Shankar Singh
@ Ram Shankar Roy v. State of West Bengal AIR1962 SC 1239: [1962]
Suppl. SCR 49; Bhupendra Singh v. State of Punjab AIR 1968 SC 1438:
[1968] SCR 404; Chotkau v. State of Uttar Pradesh (2023) 6 SCC 742; Tara
Singh v. State AIR 1951 SC 441: [1951] SCR 729; V.K. Mishra v. State of
Uttarakhand, (2015) 9 SCC 588: [2015] 8 SCR 1; Raghunandan v. State of
U.P. (1974) 4 SCC 186: [1974] 3 SCR 92, Dandu Lakshmi Reddy v. State of
A.P. (1999) 7 SCC 69: [1999] 1 Suppl. SCR 535; State of Rajasthan v. Ani
@ Hanif and Ors. (1997) 6 SCC 162: [1997] 1 SCR 199; Ram Chander v.
State of Haryana (1981) 3 SCC 191: [1981] 3 SCR 12; Masalti v. State of
U.P. (1964) 8 SCR 133; Kunal Majumdar v. State of Rajasthan (2012) 9
SCC 320: [2012] 8 SCR 706 - relied on.
1011
Sessions Judge, Nellore v. Intha Ramana Reddy 1972 Cri.L.J. 1485
- referred to.
Jones v. National Coal Board 1957 (2) All ER 155 (CA) - referred to.
Sarkar (1999, 15th pp. 2319 etc.); Phipson (Evidence, 1999, 15th Ed,
para 1.21) - referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
1271-1272 of 2018.
From the Judgment and Order dated 10.04.2018 of the High Court
of Judicature at Patna in DR No.4 of 2017 and CRADB No. 358 of 2017.
Appearances:
Dr. Aditya Sondhi, Sr. Adv., Ms. Aishwarya Saranga, Ms. Meghana
Tm, Ms. Harini Raghupathi, Kabir Dixit, Advs. for the Appellant.
Samir Ali Khan, Pranjal Sharma, Advs. for the Respondent.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
J. B. PARDIWALA, J. :
"A fair trial is one in which the rules of evidence are honored, the
accused has competent counsel, and the judge enforces the proper court
room procedures - a trial in which every assumption can be challenged."
─ Harry Browne
1. These appeals are at the instance of a convict accused sentenced to
death for the off ence 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 fi led by the appellant convict herein
and thereby confi rmed the judgment of conviction and sentence of death
MUNNA PANDEY v. STATE OF BIHAR
1012
SUPREME COURT REPORTS
[2023] 11 S.C.R.
passed by the Additional Sessions Judge-I, Bhagalpur in the Sessions Trial
No. 581 of 2015 for the off ence 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 Off ences 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 fi led by the accused but also a reference made by the Sessions Court
for confi rmation 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 confi rmation of the sentence of death, the High
Court is under an obligation to proceed in accordance with the provisions
of Sections 367 and 368 resply of the CrPC. Under these Sections the High
Court must not only see whether the order passed by the Sessions Court
is correct but it is under an obligation to examine the entire evidence for
itself, apart from and independently of the Sessions Court's appraisal and
assessment of that evidence. From the long line of decisions which have
taken this view it would be enough to refer to the decisions in Jumman v.
State of Punjab, AIR 1957 SC 469; Rama Shankar Singh @ Ram Shankar
Roy v. State of West Bengal, AIR 1962 SC 1239; and Bhupendra Singh v.
State of Punjab, AIR 1968 SC 1438.
FACTS OF THE CASE
3. The facts of the case as recorded by the High Court in its impugned
judgment are stated hereinbelow:-
"3. Short fact of the case is that on 01.06.2015 at about 12:45 PM,
fardbeyan of Kiran Devi (P.W.2) wife of Arvind Sah and mother of
the victim was recorded by Sub-Inspector of Police-cum-S.H.O. Smt.
Rita Kumari of Sabour Police Station. The fardbeyan was recorded
in the house of Nawal Kishore Ojha @ Fuchan Pandey. Nawal
Kishore Ojha @ Fuchan Pandey is the own brother of the appellant
and in the said house, there were two rooms and one room, from
where dead body was recovered, was in possession of the appellant.
In the fardbeyan, the informant/P.W.2 stated that on preceding date
i.e. 31.05.2015, she was in the house of her late sister Shakila Devi
in the village Jamunia Parbatta. On the same date at about 12:00
1013
noon, her elder daughter namely Priya Kumari (P.W.3) telephonically
informed her that her younger sister (victim) was missing. Thereafter,
she immediately moved for Sabour. After arrival in her house in
village Sabour, her elder daughter Priya informed her that the
victim had gone to watch television in the house of Munna Pandey
(appellant). When she did not return till 11:00 AM, only thereafter,
she (Priya) informed the informant. While the informant went to
the house of Munna Pandey (appellant) in search of her daughter,
she found that the house of Munna Pandey (appellant) was locked.
Thereafter, with some villagers, the informant vigorously searched
her daughter, but she (victim) could not be traced. When Munna
Pandey (appellant) was asked to open the lock, he told that key was
not with him. Thereafter, she telephoned Fuchan Pandey (brother of
appellant Munna Pandey), who at the relevant time was staying in
his in-laws' house. On 01-06-2015, Nawal Kishore Ojha @ Fuchan
Pandey at about 12:00 noon came to his house and opened the lock
of his room. In the said room, Pritam Tiwary son of Dilip Tiwary,
resident of village Shobhapur, P.S. Rajmahal, District - Sahebganj
had concealed himself. The lock of the room was opened from the
outside. When lock of the room of Munna Pandey (appellant) was
opened, dead body of the daughter of the informant was found
beneath the bed. The informant claimed that Pritam Tiwary and
Munna Pandey (appellant) both after committing rape with her 11
years old daughter by way of throttling had killed her and the dead
body was concealed in his room. The fardbeyan was read over to the
informant and after fi nding 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 off ence
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 coaccused Pritam Tiwari (brother-in-law of the elder brother of the appellant
namely Naval Kishore Ojha @ Fuchan Pandey).
MUNNA PANDEY v. STATE OF BIHAR
[J. B. PARDIWALA, J.]
1014
SUPREME COURT REPORTS
[2023] 11 S.C.R.
5. On conclusion of the investigation, charge sheet was fi led against
the appellant herein and the co-accused named above. As the off ence 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 off ence 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 offi cer and she recorded
the fardbeyan of the informant.
1015
(f) PW 6 Vijay Prasad Sah is a co-villager and he deposed that in
his presence, the dead body was recovered from the room of the
appellant.
9. Upon conclusion of recording of the oral evidence, the further
statement of the appellant convict was recorded by the Trial Court under
Section 313 of the CrPC. The appellant convict stated as under:-
"I am innocent. I have been falsely implicated. I was not living in
the house from where the dead body was recovered. I was residing in
a rented house situated in Mali Tola. I executed a deed in favour of
my brother Fuchan Pandey relating to an parental house situated at
Thatheri Tola and my brother Fuchan Pandey was living in the house
from where the dead body was recovered."
10. Upon appreciation of the oral and documentary evidence on record,
the Trial Court recorded a fi nding that the appellant herein was guilty of
the off ence 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 fi led by the
appellant convict and confi rmed 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
MUNNA PANDEY v. STATE OF BIHAR
[J. B. PARDIWALA, J.]
1016
SUPREME COURT REPORTS
[2023] 11 S.C.R.
and there must be a chain of evidence so complete as not to leave any
reasonable ground for the conclusion consistent with the innocence
of the accused and must show that in all human probability the act
must have been done by the accused.
2. Failure to conduct medical examination u/s 53A CrPC is fatal to
the case of the prosecution.
2.1 Medical examination of the accused u/s 53A of CrPC is required
in cases of rape. Even though the Appellant was taken to the hospital
for the treatment of his injuries incurred during the time of arrest, he
was not subjected to any such medical examination where his samples
were collected for the purpose of DNA examination.
2.2 In cases of rape where the victim is dead and the off ence is sought
to be established only by circumstantial evidence, medical evidence
assumes great importance. The failure of the prosecution to subject
the appellant to medical examination is fatal to the prosecution's
case. (Chotkau v State of Uttar Pradesh 2022 SCC Online SC 1313
para 81,82)
2.3 If no DNA examination is conducted and if no reasonable
explanation is provided by the prosecution for not conducting a DNA
examination, adverse consequences would fall on the prosecution.
Moreover, if reasonable grounds for believing that an examination of
the accused will not aff ord evidence as to the commission of an off ence,
it is quite unlikely that a charge-sheet would even be fi led against the
accused for committing an off ence of rape. (Rajendra Prahladrao
Wasnik v State of Maharashtra (2019) 12 SCC 495 para 49-57;
Prakash Nishad @ Kewat v State of Maharashtra 2023 SCCOnline
SC 666 para 57,58.59)
3. Prosecution did not place on record the exculpatory evidence
against the Appellant
3.1 The underwear of the Appellant was seized by the police on
01.06.2023 at 11:45 pm [Ex 6 (Seizure memo)], and the underwear of
the deceased was seized on 01.06.2015 at 11:00 pm [Ex 6/1 (Seizure
memo)]. However, the prosecution failed to prove if they were sent to
the Forensic Science Laboratory for examination.
1017
3.2 As per the order dated 29.06.2015, a letter on behalf of the
offi cer in-charge of PS Sabour was fi led 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 offi cer 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.
MUNNA PANDEY v. STATE OF BIHAR
[J. B. PARDIWALA, J.]
1018
SUPREME COURT REPORTS
[2023] 11 S.C.R.
4.3 PW2 in her Fardbeyan [Ex 1] which was recorded right after
the victim's body was recovered does not mention anything about
the Appellant in the context of a last seen evidence but improves
her testimony in Court to state that the Appellant was last seen with
the victim. PW2 was confronted with this improvement in her cross
examination, where she merely stated that she had told that Munna
Pandey had spoken to her daughter PW3 and that she did not state
in her fardbeyan that PW3 saw Munna Pandey locking the door. This
Hon'ble Court has held that especially in cases involving heinous
crimes, where there is inadequate cross-examination by the defense
counsel, the Trial Courts cannot be a mute spectator and they have the
power and duty under Section 165 of the Evidence Act, 1872 to discover
relevant facts when witnesses are not properly cross-examined.(Rahul
v State of NCT of Delhi (2023) 1 SCC 83 para 42-45)
4.4 As per the case of the prosecution, on 31.05.2015 at 09:00 when the
Appellant came to the house of PW3 to take the victim, the following
persons were in the house - the victim, PW3 and Kushboo Devi (her
aunt). However Kushboo Devi, the aunt was not examined as a last
seen witness but only PW3 (a minor) was examined by the prosecution
to prove its case.
4.5 In cases where the child witness's testimony regarding last seen
evidence is inconsistent and when the material witnesses are not
examined by the prosecution, the Court has rightly disbelieved the last
seen evidence. (Digamber Vaishnav v State of Chhatisgarh (2019) 4
SCC 522 para 40-43)
5. Conduct of the accused at the relevant time
5.1 Frequent quarrels used to take place between Naval Kishore
Ojha @ Fucchan Pandey and Munna Pandey and hence they have
been residing separately. Munna Pandey was residing separately in a
diff erent 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.
1019
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 fl ee
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 off ence
MUNNA PANDEY v. STATE OF BIHAR
[J. B. PARDIWALA, J.]
1020
SUPREME COURT REPORTS
[2023] 11 S.C.R.
against the deceased. However, the said confession was made after
he was beaten by the police offi cers and was made in the presence
of police offi cers. 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 off ence. Those are as under:-
•
The circumstance of PW3 seeing the Appellant lock the grill and
the door of his room
•
The circumstance that the Appellant gave false information to PW3
that the victim had already left after watching TV
•
The circumstance of the accused refusing to open the door as he
did not have the key
•
The circumstance of the Appellant giving the keys to the villagers
after he was assaulted
•
The circumstance of the alleged extra-judicial confession made by
the co-accused Pritam Tiwari implicating the Appellant
7.2 This Hon'ble Court has consistently held that the circumstances
not put to the Appellant cannot be relied upon to convict an accused
8. Flaws in the judgment of the Trial Court and the High Court
8.1 The Trial Court in its judgment makes only a brief discussion of
the evidence and erroneously records that Pritam Tiwari and Munna
Pandey were found inside the house.
8.2 The High of Judicature at Patna, in the impugned judgment [at para
9]; observes that it is prima facie satisfi ed 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
1021
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 suff ers
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 fi led a mitigation report along with the affi davits
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 certifi ed 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 affi davit 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)
MUNNA PANDEY v. STATE OF BIHAR
[J. B. PARDIWALA, J.]
1022
SUPREME COURT REPORTS
[2023] 11 S.C.R.
14. In such circumstances, referred to above, the learned counsel prayed
that there being merit in his appeals, the same be allowed and the judgment
and order of conviction and capital sentence be set aside and the appellant
may be acquitted of all the charges.
SUBMISSIONS ON BEHALF OF THE PROSECUTION
15. On the other hand, these appeals were vehemently opposed by Mr.
Samir Ali Khan, the learned counsel appearing on behalf of the State. He
submitted that no error, not to speak of any error of law, could be said to
have been committed by the Courts below in holding the appellant guilty
of the off ence charged with and treating the case to be one falling under the
category of "rarest of the rare cases".
16. The learned counsel laid much stress on the fact that it was the
appellant who visited the house of the victim at 9 o'clock in the morning of
31.05.2015 and lured the victim to come to his house to watch TV. It was
argued that all the witnesses have deposed that the victim went to the house
of the appellant in the morning on 31.05.2015 to watch TV and thereafter
she went missing. He submitted that the sister of the victim namely Priya
Kumari (PW 3) immediately informed her mother Kiran Devi (PW 2) who
at the relevant point of time was at the house of her sister at a diff erent
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
1023
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.