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IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHUTOSH KUMAR and ALOK KUMAR PANDEY, JJ.
Death Reference No.4 of 2017 with Cr. Appeal (DB) No. 358 of 2017
(11.10.2023)
State of Bihar (in 4)
Munna Pandey (in 358) ... Appellants
vs.
Munna Pandey (in 4)
State of Bihar (in 358) ... Respondents
Criminal Procedure Code, 1973 – Section 366 – Death reference – Whenever a Court of Sessions passes a sentence of death, proceedings are to be compulsorily submitted to High Court and sentence of death is not to be executed unless it is confirmed by High Court – It is within powers of High Court to either confirm sentence or annul conviction and acquit accused person – This power has to be exercised diligently – High Court while dealing with Reference has to satisfy itself as to whether a case beyond reasonable doubt has been made out against accused persons for infliction of penalty of death – Proceedings before High Court, in Reference, are in nature of reappraisal and re-assessment of entire facts and law – It would only be a travesty of justice if High Court does not consider proceedings in all its aspects and arrives to a conclusion on materials, independently of view expressed by Sessions Judge. (Paras 53 to 56)
Protection of Children from Sexual Offences Act, 2012 – Section 4 – Indian Penal Code, 1860 – Sections 302 and 376 – Rape and murder of girl child – Death sentence – Trial Court had made no efforts to ensure that adequate questions were put to witnesses to elicit truth – High Court, in Appeal and in Reference, fell in same error – Impact was an unfair Trial to appellant – Offence which Trial Court was trying was diabolical – However, it would be equally distressing if an innocent person is convicted only because of moral compass that a 10 year old girl has been raped and killed, showing utmost depravity and suspicion against appellant – Case has been remanded for a reappraisal only when Supreme Court found that fair Trial has not been handed over to appellant because of inadequate cross-examination in view of specific statement made by witnesses during investigation – Even if 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 guilt of appellant – Pathological report was not brought on record – Prosecution has not been able to prove case beyond all reasonable doubts and benefit of doubt has to be given to appellant – Reference rejected – Judgment of conviction and order of sentence set aside – However, in view of provisions contained under Section 357A of Cr.P.C., State Legal Services Authority shall provide compensation to mother of victim. (Paras 57, 58, 60, 72, 83, 101, 132, 147, 149, 151 and 154)
Criminal Law – Criminal Trial – In an adversarial system of Trial, 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 trial by evincing intelligence and active interest by putting questions to witnesses in order to ascertain truth – Reticence 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 – Robust judging is response to cry of justice – 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 true course of justice. (Paras 61, 62 and 64)
Indian Evidence Act, 1872 – Section 165 – Judge's power to put questions or order production – Even if any question by the Court under Section 165 crosses in realm of irrelevancy, it would not transgress beyond contours of powers of Court – No questions could be raised about the impact of question put to a witness by Court under Section 165. (Para 70)
Criminal Procedure Code, 1973 – Sections 161 and 162 – Indian Evidence Act, 1872 – Section 145 – Interplay of Sections 161 and 162 of Cr.P.C. and Section 145 of Evidence Act – 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 Evidence Act, 1872 – If any part of such statement is so used, attention of maker has to be drawn to that statement – Without such statement of witness being shown to him and same having been proved, it cannot be used for contradicting him. (Paras 80, 82 and 89)
Criminal Procedure Code, 1973 – Section 53-A – Medical examination of rape accused – While examining such arrested person, Doctor is required to identify marks of injury as also description of materials taken from person of accused for DNA profiling and other materials which would help unravel truth – When offence charged is heinous and evidence put forth is circumstantial in nature, Courts are required to put material evidence under scrutiny of a much higher standard – Compliance of Section 53-A is not mandatory but non-compliance definitely weakens prosecution case. (Paras 136, 138 and 141)
Ashutosh Kumar. – 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.
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 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 reappraisal 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.
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.
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. Wh
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