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Synopsis

The Supreme Court has set aside death penalty awarded to a man in a 2015 case of murder and gang rape of a 10-year-old girl, after finding the manner in which the Patna High Court, trial court, the prosecution, and the police dealt with the matter to be "very shocking".

A bench of Justices B R Gavai, J B Pardiwala and Prashant Kumar Mishra also noted "serious lapses" on the part of defence and has remitted the matter back to the High Court for a fresh consideration of the death reference and criminal appeal filed by convict Munna Pandey.

Court has further said, "Neither the defence counsel nor the public prosecutor nor the presiding officer of the Trial Court and unfortunately even the High Court thought fit to look into this aspect of the matter and try to reach to the truth." 

With regard to role of the High Court, the bench opined, "We regret to state that the High Court completely overlooked these aspects. What was expected of the High Court to do in such circumstances? If the High Court would have taken little pains to look into the record, then immediately it could have taken recourse to Section 367 of the CrPC."

Referring to Sections 367 and 368 respectively of the CrPC, court noted the provisions make it clear that the duty of the High Court, in dealing with the death reference, is not only to see whether the order passed by the Sessions Judge is correct, but to examine the case for itself and  even direct a further enquiry or the taking of additional evidence if the Court considers it desirable in order to ascertain the guilt or the innocence of the convicted person. 

Noting "very serious lapses" in the entire investigation, the bench said it should have been a matter of inquiry by the State as well as the trial court as to who were the senior officers who directed the Investigating Officer Rita Kumari not to procure FSL report and why in the case, as her oral evidence "disturbed as a lot".

"The lapse is just a tip of the iceberg. We are at pains to state that it is a very serious flaw on the part of the investigating officer and that too in such a serious matter," bench added.

Bench noted another "serious flaw" on the failure of the police to subject the appellant to medical examination, saying it "assumes great importance in cases where the victim of rape is dead and the offence is sought to be established only by circumstantial evidence". Further, while recording statement of the appellant, the court said none of the incriminating circumstances were put to him.
 
Court further said it was the duty of the defence counsel to confront the witnesses with their police statements so as to prove the contradictions in the form of material omissions and bring them on record. "We are sorry to say that the defence counsel had no idea how to contradict a witness with his or her police statements in accordance with Section 145 of the Evidence Act, 1872," the bench said.

Coming to the "lapse on part of public prosecutor", the court said it is also something very unfortunate. "The public prosecutor knew that the witnesses were deposing something contrary to what they had stated before the police in their statements recorded under Section 161 of the CrPC. It was his duty to bring to the notice of the witnesses and confront them with the same even without declaring them as hostile," it said.

The court further said the presiding officer of the Trial Court also remained a "mute spectator", though it was the duty of the presiding officer to put relevant questions to these witnesses in exercise of his powers under Section 165 of the Evidence Act. Section 162 of the CrPC does not prevent a Judge from looking into the record of the police investigation, it added.

"We also wish to emphasise that in many sessions cases when an advocate appointed by the Court appears and particularly when a junior advocate, who has not much experience of the procedure of the  Court, has been appointed to conduct the defence of an accused person, it is the duty of the Presiding Judge to draw his attention to the statutory provisions of Section 145 of the Evidence Act, as explained in Tara Singh v. State (1951)," the judgment adds.

"In our opinion, in a case of the present description where the evidence given in a Court implicates persons who are not mentioned in the first information report or police statements, it is always advisable and far more important for the Trial Judge to look into the police papers in order to ascertain whether the persons implicated by witnesses, at the trial had been implicated by them during the investigation," the bench has added.

Highlighting the concept of fair trial, supreme court has said, "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."

On the role of a trial judge, the bench said, he has to remain very vigilant, cautious, fair and impartial, and not to give even a slightest of impression that he is biased or prejudiced either due to his own personal convictions or views in favour of one or the other party. 

Case Title: Munna Pandey vs. State of Bihar