2023 Supreme(SC) 822

SUPREME COURT OF INDIA
B.R. Gavai, J.B. Pardiwala, Prashant Kumar Mishra, JJ.
Munna Pandey - Appellant
Versus
State Of Bihar - Respondent
Criminal Appeal Nos. 1271-1272 of 2018
Decided On : 04-09-2023

IMPORTANT POINTS
(1) Death sentence – On a reference for confirmation of sentence of death, High Court is under obligation to proceed in accordance with provisions of Sections 367 and 368 respectively of Cr.P.C.
(2) Section 162 of Cr.P.C. does not prevent a Judge from looking into record of police investigation.
(3) Free and fair trial is sine-qua-non of Article 21 of Constitution of India – Denial to fair trial is as much injustice to accused as to victim and society.

Headnote:

(A) Criminal Procedure Code, 1973 – Section 366 – Death sentence – On a reference for confirmation of sentence of death, High Court is under obligation to proceed in accordance with provisions of Sections 367 and 368 respectively of Cr.P.C. – Under these Sections High Court must not only see whether order passed by Sessions Court is correct but it is under obligation to examine entire evidence for itself, apart from and independently of Sessions Court's appraisal and assessment of that evidence. (Para 2)

(B) Indian Evidence Act, 1872 – Section 165 – Criminal Procedure Code, 1973 – Section 162 – Death sentence – There is nothing in Section 162, Cr.P.C. to prevent Trial Judge, as distinct from prosecution or defence, from putting to prosecution witnesses questions otherwise permissible, if justice obviously demands such a course – Section 162 of Cr.P.C. does not prevent a Judge from looking into record of police investigation – Being a case of rape and murder and as evidence was not free from doubt, Trial Judge ought to have acquainted himself, in interest of justice, with important material and also with what only important witnesses of prosecution had said during police investigation – There is nothing in Section 162 of Cr.P.C. which prevents a Trial Judge from looking into papers of charge-sheet suo motu and himself using statement of a person examined by police recorded therein for the purpose of contradicting such person when he gives evidence in favour of State as a prosecution witness – In a case of present description where evidence given in a Court implicates persons who are not mentioned in FIR or police statements, it is always advisable and far more important for Trial Judge to look into police papers in order to ascertain whether persons implicated by witnesses, at the trial had been implicated by them during investigation. (Paras 43, 47 and 48)

(C) Protection of Children from Sexual Offences Act, 2012 – Section 4 – Indian Penal Code, 1860 – Sections 302 and 376 – Criminal Procedure Code, 1973 – Section 53A – Rape and murder of girl child – Death sentence – There are very serious lapses in entire investigation – Failure to subject appellant to medical examination by a medical practitioner – No explanation, much less any reasonable explanation, has been offered for such a serious flaw on part of Investigating Officer – Medical examination of an accused assumes great importance in cases where victim of rape is dead and offence is sought to be established only by circumstantial evidence – It was duty of defence counsel to confront witnesses with their police statements so as to prove contradictions in form of material omissions and bring them on record – Being a case of rape and murder and as evidence was not free from doubt, Trial Judge ought to have acquainted himself, in interest of justice, with important material and also with what only important witnesses of prosecution had said during police investigation – Impugned judgment of High Court set aside and matter is remitted back to High Court for reconsideration of Death Reference. (Paras 22, 24, 29, 43, 73 and 75)

(D) Criminal Procedure Code, 1973 – Sections 366, 367, 368 and 384 – Death Reference and Criminal Appeal – Ordinarily, in a criminal appeal against conviction, appellate court, under Section 384 of Cr.P.C., can dismiss appeal if Court is of opinion that there is no sufficient ground for interference, after examining all grounds urged before it for challenging correctness of decision given by Trial Court – It is not necessary for appellate court to examine entire record for the purpose of arriving at an independent decision of its own whether conviction of appellant is fully justified – Position is, however, different where appeal is by an accused who is sentenced to death – Duty of High Court, in dealing with reference, is not only to see whether order passed by Sessions Judge is correct, but to examine case for itself and even direct a further enquiry or taking of additional evidence if Court considers it desirable in order to ascertain guilt or innocence of convicted person. (Para 59)

(E) Constitution of India – Article 21 – Fair trial – Free and fair trial is sine-qua-non of Article 21 of Constitution of India – If criminal trial is not free and fair, then confidence of public in judicial fairness of a Judge and justice delivery system would be shaken – Denial to fair trial is as much injustice to accused as to victim and society – No trial can be treated as a fair trial unless there is an impartial Judge conducting 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 Prosecutor to prove guilt of accused and opportunity to accused to prove his innocence – In pious process of unravelling truth so as to achieve ultimate goal of dispensing justice between parties Judge cannot keep himself unconcerned and oblivious to various happenings taking place during progress of trial of any case – Fair trial is possible only when court takes active interest and elicit all relevant information and material necessary so as to find out truth for achieving ultimate goal of dispensing justice with all fairness and impartiality to both parties. (Paras 67, 68, 70 and 71)

Facts of the case:

Present appeals are at the instance of a convict accused sentenced to death for the offence of rape and murder of a 10 years old girl. High Court dismissed the Criminal Appeal filed by appellant convict herein and thereby confirmed the judgment of conviction and sentence of death passed by Additional Sessions Judge-I, Bhagalpur in the Sessions Trial No. 581 of 2015 for the offence punishable under Sections 302 and 376 respectively of Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act, 2012.

Findings of Court:

As the appellant convict is in jail past more than nine years, his family might be in dire straits. He may not be in a position to engage a lawyer of his choice. Probably, he may not be in a position to even understand what is said in this judgment. In such circumstances, High Court may request a seasoned criminal side Lawyer to appear on behalf of the appellant and assist Court.

Result : Matter remitted back to High Court for reconsideration of Death Reference.