Justice Pardiwala wrote:"This Court has condemned the passive role played by the Judges and emphasized the importance and legal duty of a Judge to take an active role in the proceedings in order to find the truth to administer justice and to prevent the truth from becoming a casualty. A Judge is also duty bound to act with impartiality and before he gives an opinion or sits to decide the issues between the parties, he should be sure that there is no bias against or for either of the parties to the lis. For a judge to properly discharge this duty the concept of independence of judiciary is in existence and it includes ability and duty of a Judge to decide each case according to an objective evaluation and application of the law, without the influence of outside factors. If the Courts are to impart justice in a free, fair and effective manner, then the presiding judge cannot afford to remain a mute spectator totally oblivious to the various happenings taking place around him, more particularly, concerning a particular case being tried by him. The fair trial is possible only when the court takes active interest and elicit all relevant information and material necessary so as to find out the truth for achieving the ultimate goal of dispensing justice with all fairness and impartiality to both the parties."He recalled Justice Chinnappa Reddy's order in Ram Chander v. State of Haryana, (1981) wherein he observed that if a criminal court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth.
Supreme Court has noticed serious lapses in the entire investigation. It was disturbed by the oral evidence of the investigating officer Rita Kumari, the Prosecution Witness (PW) 5. The investigating officer in her cross examination deposed that in accordance with the order dated June 29, 2015 a letter on behalf of the officer-in-charge of the Police Station, Sabour, was filed before the Trial Court seeking permission to send the muddamal articles to the Forensic Science Laboratory (FSL), Patna for examination. However, Rita Kumari in her cross examination before the Trial Court admitted that following the instructions of her senior officers, she did not take any steps to procure FSL report. The Court asked, "Who are these senior officers of PW 5 and why they instructed the PW 5 not to procure the FSL report". It should have been a subject matter of inquiry by both, the State as well as the trial court. Even High Court failed to inquire in to it. It has detected the failure of the investigating officer to subject the appellant to medical examination by a medical practitioner under Section 53(1) of the CrPC enables a police officer not below the rank of sub-inspector 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 afford such evidence, whenever a person is arrested on a charge of committing an offence of such a nature that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence.
The Court's perusal of the statements of prosecution witnesses made under Section 161 of CrPC before the police revealed that it was Pritam Tiwari who had come to the house of the victim on the fateful day and date and had taken the victim along with him to his house to watch TV. All the statements further reveal that it was Pritam Tiwari who was found locking the door when the witnesses enquired with Pritam Tiwari about the whereabouts of the victim. But "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 the aforesaid aspect of the matter and try to reach to the truth." It records that "he learned 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 Court records that "The lapse on the part of public prosecutor 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. The presiding officer of the Trial Court also remained a mute spectator. 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. Being a case of rape and murder and as the evidence was not free from doubt, the Trial Judge ought to have acquainted himself, in the interest of justice, with the important material and also with what the only important witnesses of the prosecution had said during the police investigation. Had he done so, he could without any impropriety have caught the discrepancies between the statements made by these witnesses to the investigating officer and their evidence at the trial, to be brought on the record by himself putting questions to the witnesses under Section 165 of the Evidence Act. There is, in our opinion, nothing in Section 162 CrPC to prevent a Trial Judge, as distinct from the prosecution or the defence, from putting to prosecution witnesses the questions otherwise permissible, if the justice obviously demands such a course. In the present case, we are strongly of the opinion that is what, in the interests of justice, the Trial Judge should have done but he did not look at the record of the police investigation until after the investigating officer had been examined and discharged as a witness. Even at this stage, the Trial Judge could have recalled the officer and other witnesses and questioned them in the manner provided by Section 165 of the Evidence Act. It is regrettable that he did not do so."
It observed: "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. In the aforesaid context, we may refer to and rely on a three-Judge Bench decision in the case of V.K. Mishra v. State of Uttarakhand, (2015) 9 SCC 588, wherein this Court, after due consideration of Section 161 of the CrPC and Section 145 of the Evidence Act...."
In this case the Court underlined that "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." It further states that 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 after strict compliance with Section 145 of the Evidence Act that is by drawing attention to the parts intended for contradiction.
Section 145 of the Evidence Act reads: 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.” 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 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.”
Drawing these insights from the previous judgement, the Court observed: "What is important to note in the aforesaid decision of this Court is the principle of law that 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. Therefore, it is of utmost importance to prove all major contradictions in the form of material omissions in accordance with the procedure as established under Section 145 of the Evidence Act and bring them on record. It is the duty of the defence counsel to do so." It pointed out that the Judge should not be a passive spectator but should take a proactive role.
The Court gave a lesson on the "role and duty of the High Court in confirmation cases" saying, "We regret to state that the High Court completely overlooked the aforesaid aspects as discussed above. 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. We invite the attention of the High Court to the provisions of Chapter XXVIII (Section 366 to Section 371) and Chapter XXIX (Section 372 to Section 394)." According to Section 366 when a Court of Session passes a sentence of death, the proceedings must be 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 then proceeds to lay down the power of the High Court to direct further enquiry to be made or additional evidence to be taken. Section 368, thereafter, lays down the power of the High Court to confirm the sentence so imposed or annul the conviction. One of the powers which the High Court can exercise is one under Section 368(c) of the CrPC and that is to “acquit the accused person”. Pertinently, the 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 confirmation” is a proceeding in continuation of the trial. These provisions thus 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. The scope of the chapter is wider. Chapter XXIX of the CrPC deals with “Appeals”. Section 391 also entitles the appellate court to take further evidence or direct such further evidence to be taken. Section 386 then enumerates powers of the appellate court which inter alia includes the power to “reverse the finding 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”. The powers of the appellate court are equally wide. The High Court in the present case was exercising powers both under Chapters XXVIII and XXIX of the CrPC.
It explained how ordinarily, in a criminal appeal against conviction, the appellate court, under Section 384 of the CrPC, can dismiss the appeal, if the Court is of the opinion that there is no sufficient ground for interference, after examining all the grounds urged before it for challenging the correctness of the decision given by the Trial Court. It is not necessary for the appellate court to examine the entire record for the purpose of arriving at an independent decision of its own whether the conviction of the appellant is fully justified. The position is, however, different where the appeal is by an accused who is sentenced to death, so that the High Court dealing with the appeal has before it, simultaneously with the appeal, a reference for confirmation of the capital sentence under Section 366 of the CrPC. On a reference for confirmation of sentence of death, the High Court is required to proceed in accordance with Sections 367 and 368 respectively of the CrPC and the provisions of these Sections 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 the Court considers it desirable in order to ascertain the guilt or the innocence of the convicted person. It is true that, under the proviso to Section 368, no order of confirmation 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 filed by a condemned prisoner, that appeal has to be disposed of before any order is made in the reference confirming the sentence of death. In disposing of such an appeal, however, it is necessary that the High Court should keep in view its duty under Section 367 CrPC and, consequently, the Court 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 justified and the sentence of death should be confirmed.
The Court also gave a lesson on concept of fair trial. It observed: All fair trials are necessarily legally valid, but is the reverse necessarily true? What then is the genesis of the concept of a fair trial? The concept of a fair trial has a very impressive ancestry, is rooted in history, enshrined in the Constitution, sanctified by religious philosophy and juristic doctrines and embodied in the statute intended to regulate the course of a criminal trial. Its broad features and ingredients have, in course of time, been concretised into well recognised principles, even though there are grey areas, which call for further legal thought and research. Truth is the cherished principle and is the guiding star of the Indian criminal justice system. For justice to be done truth must prevail. Truth is the soul of justice. The sole idea of criminal justice system is to see that justice is done. Justice will be said to be done when no innocent person is punished and the guilty person is not allowed to go scot free....The role of a judge in dispensation of justice after ascertaining the true facts no doubt is very difficult one. In the pious process of unravelling the truth so as to achieve the ultimate goal of dispensing justice between the parties the judge cannot keep himself unconcerned and oblivious to the various happenings taking place during the progress of trial of any case. No doubt 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. This, however, would not mean that the Judge will simply shut his own eyes and be a mute spectator, acting like a robot or a recording machine to just deliver what stands feeded by the parties.
The judgement reads: "In the result, the impugned judgment of the High Court is set aside and the matter is remitted back to the High Court for reconsideration of the Death Reference No. 4 of 2017 and Criminal Appeal (DB) No. 358 of 2017. The Death Reference No. 4 of 2017 and Criminal Appeal (DB) No. 358 of 2017 stand restored for reconsideration of the High Court in accordance with law. The appellant is in jail past more than nine years. In such circumstances, the Death Reference referred to above on being restored to the file of the High Court shall be taken up for hearing expeditiously. The learned Chief Justice of the High Court is requested to notify the Death Reference along with the Criminal Appeal for hearing before a Bench which he may deem fit to constitute. We also request the learned Judges who would be hearing the matter to give priority and dispose of the same at the earliest in accordance with law." The judgement begins after quoting Harry Browne, an American jurist and judge saying “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.” The appellant had prayed that judgment and order of conviction and capital sentence be set aside and he be acquitted of all the charges."
Earlier, on April 10, 2018 as part of Division Bench of Patna High Court Justice Rakesh Kumar had pronounced an oral judgement in The State of Bihar Vs. Munna Pandey confirming the death sentence, which has been imposed by the learned Trial Judge and dismissed the appeal filed by the appellant against his conviction. By doing so "the judgment of conviction of the appellant dated 2.2.2017 for offence under Sections 302 and 376 of the I.P.C. passed by Sri Janardan Tripathi, learned Additional Sessions Judge I, Bhagalpur in Sessions Trial No. 581 of 2015 and death sentence of the appellant dated 23.2.2017" was approved and confirmed by the High Court judge in question. The death sentence was uploaded and transmitted on April 19, 2018. The Division Bench included Justice Arvind Srivastava.
The Criminal Appeal was filed in the Supreme Court on July 12, 2018. It was registered and admitted on October 8, 2018 by Advocate Kabir Dixit. Between 2018 and September 2023, the case was listed for hearing on 13 occasions. It was initially listed before Justice Ranjan Gogoi, the 46th Chief Justice of India headed 3-Judge Bench including Justices S.K. Kaul and K.M.Joseph. This bench had condoned the delay and granted leave. Its order dated October 8, 2018 directed, "There shall be stay of the execution of the death sentence till disposal of the appeals."
The order of Anil Laxman Pansare, Registrar, Supreme Court dated February 6, 2019 reads: "Await original record from the High Court as well as Trial Court. Reminder be issued."
The order of Avani Pal Singh, Registrar, Supreme Court dated April 1, 2019 reads: "Await original records from the High Court and Trial Court. Issue letter of request to the learned Registrar General of the concerned Court with a request that original record may be ensured to be dispatched within two weeks from the date of receipt of request(upon due translation)." The order of Anil Laxman Pansare, Registrar, Supreme Court dated July 8, 2019 reads: "Await original record from the Trial Court." His order dated October 14, 2019 reads: "Original record has been received from the High Court. Await original record from the Trial Court. Reminder be issued." His order dated January 22, 2020 reads: "Original records have been received from the High Court and Trial Court. Parties may file additional documents. Registry to process the matter for listing before the Hon'ble Court, as per rules."
Subsequently, it got listed before Justice S. Abdul Nazeer headed 3-Judge Bench on 6 September, 2022. On May 5, 2023, it got listed before Justice B.R. Gavai headed 3-Judge Bench. On July 20, 2023, the case was heard by a 3-Judge Bench comprising of Justices Gavai, J.B. Pardiwala and P. K. Mishra and the judgement was reserved. Munna Pandey, the Appellant was represented by advocates Dr. Aditya Sondhi and Aishwarya Saranga, Meghana Tm, Harini Raghupathi, Shivani Mishra and Kabir Dixit. The State of Bihar, the respondent was represented by advocates Samir Ali Khan and Pranjal Sharma. The Court'S order dated July 20 reads: "1. Heard learned counsel for the parties at length. 2. Hearing concluded. 3. Judgment reserved. 4. Written submission, if any, be filed by 24.07.2023."
Dr. Aditya Sondhi, the learned senior counsel appearing for the appellant convict argued that the "Case purely of circumstantial evidence" and the chain of evidence is incomplete and inconclusive. He pointed out the failure to conduct medical examination required in cases of rape under Section 53 A of Criminal Procedure Code. The prosecution did not place on record the exculpatory evidence against the Appellant. The alleged confession of Pritam Tiwari, a juvenile co-accused implicating Munna Pandey cannot be relied upon. He underlined the flaws in the judgment of the Trial Court and the Patna High Court. Munna Pandey’s wife Sangeeta was elected as the ward councilor in 2010. The Courts below have incorrectly sentenced the Appellant to undergo the sentence of death. He argued that the judgment and order of conviction and capital sentence be set aside and the appellant may be acquitted of all the charges.
Samir Ali Khan, the counsel appearing on behalf of the State argued that no error has been committed by the Courts below in holding the appellant guilty of the offence charged with and treating the case to be one falling under the category of “rarest of the rare cases”. He pointed out that when the house of Munaa Pandey 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. 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 Priya Kumari, the elder sister of the victim and the Prosecution Witness 3 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. He submitted that the chain of evidence is so complete that it does not leave any reasonable ground for the conclusion consistent with the innocence of the accused.
Finally, the judgement was delivered on September 4, 2023. The Court's Record of Proceedings states that Justice J.B. Pardiwala pronounced the judgment of the Bench comprising Justices Gavai and Prashant Kumar Mishra. The judgement underlines that Justice Rakesh Kumar bench of Patna "High Court had before it not only the appeal filed by the accused but also a reference made by the Sessions Court for confirmation 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 confirmation 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. The judgement has directed the Registry to "forward one copy each of this judgment to all the High Courts with a further request to each of the High Courts to circulate the same in its respective district judiciary" as a lesson.
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