Supreme Court reverses acquittal order of Justice Dharnidhar Jha, Patna High Court in double murder accused Prabhunath Singh case

On September 1, 2023, the Supreme Court's bench of Justices S K. Kaul, Abhay S. Oka and Vikram Nath pronounced its 8 page long sentencing order in Harendra Rai v. State of Bihar after delivering its 143 page long judgement on August 18, 2023 in the case of an offence committed in the year 1995, almost 28 years old. The Court did not deem it appropriate to award death sentence to Prabhunath Singh, a political leader and a sitting Member of Parliament at the time of offence. He is a four time MP. The Court awarded imprisonment for life to him under Section 302 of Indian Penal Code (IPC) along with fine of Rs.20 lakh. He has been awarded 7 years rigorous imprisonment under Section 307 IPC along with fine of Rs.5 lacs. Both the sentences are to run concurrently. 

Justice Vikram Nath pronounced the judgment for the Bench comprising of Justices Kaul, Oka and Nath. Disposing off the Appeal, the sentencing order states that the acquittal of Prabhunath Singh recorded by the Trial Court and the High Court was reversed vide judgment dated August 18, 2023 and he was convicted under Section 302 and 307 of the Indian Penal Code, 1860. The Criminal Revision Petition was  initiated by the High Court exercising its suo motu power in the light of the minutes recorded by the Inspecting Judge of Patna Judgeship on May 4, .2009 and resolution of the Standing Committee dated July 14, 2009.

By doing so it has established the incorrectness of the 19 page long judgment and order dated February 2, 2011 passed by Justice Dharnidhar Jha, the single judge of the Patna High Court in Criminal Revision Petition No. 1345 of 2009, whereby the said Revision Petition was dismissed confirming the judgment of the Additional Sessions Judge, Fast Track Court III, Patna dated October 24, 2008 passed in Sessions Trial Nos. 469 of 2007 and 470 of 2007, acquitting Respondent Nos. 2 to 8 of all the charges. Justice Jha was seized with the judgment dated October 24, 2008 passed by the Presiding Officer, Fast Track Court III, Patna in S.T. Nos. 469 and 470 both of 2007 arising out of Panapur P.S. Case no. 62 of 1995 by which the learned trial judge acquitted the respondent nos. 1 to 7 of the charges under sections 147, 148, 302, 307/149 and 302/149 IPC and section 27 Arms Act because "the prosecution has totally failed to bring the charges home against them." Concluding his judgement and order, Justice Jha had said, "the revision petition is merit-less and the same is hereby dismissed as I could not find out any element of perversity afflicting the judgment. The view which was taken by the learned trial judge was the most probable view." The Patna fast track court had acquitted Prabhunath Singh and six others for lack of evidence in double murder case of 1995. By now it is amply clear that Supreme Court does not approve of his view and the view taken by the Additional Sessions Judge, Fast Track Court III, Patna.

The prosecution version, as recorded in the FIR in the statement of Rajendra Rai, narrated that the informant along with eight-nine other persons of his village was returning after casting their vote in the election on 25.03.1995 at around 9AM; when they reached south east of his residence, five persons came in a car armed with rifles and guns and stopped the car; Prabhunath Singh, who was the contesting candidate for Bihar People’s Party (BPP), while sitting in the car enquired as to whom all of them had cast their votes; the informant answered that they had cast their votes in favour of Janta Dal Party having symbol of Chakrachap; on hearing this, the car moved towards south and stopped at a little distance.

Prabhunath Singh opened fire from his rifle pointing towards the informant and others and thereafter the car sped away. As a result of the firing, three persons got injured. On the basis of the FIR, investigation was taken up. Inspection was made of the spot of occurrence. Three used cartridges were recovered from the place of occurrence, they were sealed and a recovery memo was prepared. The Investigating Officer recorded the statement of the witnesses. The injured were provided medical treatment, the doctor prepared the injury report and after two of the injured expired, the post-mortem reports of the two deceased persons were also prepared. Daroga Rai died soon after the incident and his post-mortem was conducted on March 26, 1995. Rajendra Rai died after about five months on 21.08.1995 and his post-mortem was conducted on August 22, 1995.

As Prabhunath Singh was avoiding the arrest, nor was he surrendering as he was the member of the ruling party. The District Magistrate, considering the amount of influence being yielded by the accused, found that it was not feasible to conduct the cases in District Saran at Chapra and hence recommended the transfer of all the six cases to Hazaribagh. In all these cases Prabhunath Singh was an accused. The transfer was approved by the High Court. However, later in the year 2000, upon re-organization of the State of Bihar, as Hazaribagh fell in the State of Jharkhand, the present trial was transferred to District Bhagalpur in Bihar. After 11 years that charges could be framed by the Trial Court on March 26, 2006 against all the accused for offences under various Sections of IPC. On October 24, 2008, the Trial Court acquitted all the accused in both the Sessions Trials bearing no. 469 of 2007 and 470 of 2007. There was no challenge to the judgment of acquittal by the State.  

In its judgement, the Court takes note of the blunder committed by Prabhunath Singh in getting the court witness, Lalmuni Devi, mother of deceased Rajendra Rai abducted ten days before the date fixed for recording her statement. This led to filing of a Habeas Corpus Petition Cr.WJC No. 717 of 2006, Harendra Rai Versus State of Bihar before the High Court. A report submitted by the Inspecting Judge as a result of an unruly incident which occurred in the Trial Court on the date Lalmuni Devi-deposed before the Trial Court and another report of the Inspecting Judge commenting upon the judgment of acquittal by the Trial Court. The Supreme Court records: "the trial proceeded but again in a most shabby manner, not even complying with the directions of the High Court. The Special Public Prosecutor for the State, instead of getting the witnesses examined before the Court, filed affidavits on their behalf reiterating their earlier statements." 

The Division Bench of Patna High Court which included Justice S.P. Singh had three materials before it namely affidavit of Lalmuni Devi, her statement recorded by the Magistrate on November 20, 2006, the reports of Dr. D,N. Gautam, Additional Director General of Police dated November 30, 2006, December 16, 2006 and January 22, 2007 and the enquiry report by Justice C.K. Prasad, the Inspecting Judge, Bhagalpur dated February 21, 2007. It had rejected the submissions of teh Advocate General and Vindhya Kesari Kumar, senior counsel appearing for Prabhunath Singh as being without any substance or merit.

It emerged that Lalmuni Devi had been abducted along with her husband by Dina Nath Singh (brother of Prabhunath Singh) and Chotelal, MLA from Parsa. She was asked by the abductors to change her statement and if she would not do the same, then Prabhunath Singh would kill her other son (Harendra Rai) as well. She also described how she was taken to Court room where the incident took place in which the men of Prabhunath Singh assaulted her son, daughter-in-law and son-in-law who wanted to take her with them. The Judge was sitting in Court and in his presence her family members were assaulted but the Judge said nothing. She was also threatened that she would also be killed. She was again taken by Prabhunath Singh and his men from the Court on November 3, 2006. She also stated that she had not given any statement on November 3, 2006 and only her thumb impressions were taken as she was frightened and afraid that she might lose her other son, daughter-in-law and son-in-law who were being continuously assaulted. It was after three-four days that she reached her home. She also narrated in her statement in the enquiry report about the working of Prabhunath Singh and that he was again preparing to get her abducted. Dr. D.N. Gautam, the Additional Director General of Police, had condemned the report of D.I.G., Saran range, Chapra in his report. He had concluded the report by observing that the investigation of the two cases was quite casual and the supervision and control of the investigation was also pitiable. He had also recorded the statements of Lalmuni Devi and Rama Rai which was again reproduced in the order and the same is not being repeated as it is more or less the same as recorded above. Dr. Gautam in his report also commented that the sequence of events started only after the application under Section 311 CrPC was allowed and Lalmuni Devi was called as a court witness on November 3, 2006. 

It may be recalled that when CRLMP. No. 5711, the Special Leave to Appeal (Criminal) was filed in the Supreme Court in 2012 arising from the judgement and order of Patna High Court dated December 2, 2011 in CRRP No.1345/2009 (Harendra Rai v. State of Bihar, upon hearing the bench of Justices H. L. Dattu and C. K. Prasad passed an order saying, "List before a Bench of which Hon’ble Mr. Justice C.K.Prasad, is not a Member". 

Notably, Justice C.K. Prasad was the Inspecting Judge of the judgeship who called for reports and ordered an enquiry in the matter of "newspaper report about the fracas created in the Court of 7th Additional Sessions Judge, Bhagalpur while the court proceedings were going on" in the case pertaining to Prabhunath Singh. After a thorough and painstaking enquiry, Justice Prasad gave a report on February 21, 2007 noting the circumstances in which the trial arising from Masrakh (Panapur) P.S. Case No.62 of 1996, that should normally have taken place at Chapra, was first transferred to Hazaribagh and when as a result of the bifurcation of the State Hazaribagh fell in Jharkhand, it was brought to Bhagalpur. After taking into account the reports submitted by the District and Session Judge, the 7th Additional Sessions Judge, the Public Prosecutor, statements of witnesses and the report of Dr. D.N. Gautam to whom he entrusted the enquiry. In his report Justice Prasad found and held that “I do not have the slightest hesitation in endorsing the reports of the District and Sessions Judge, Bhagalpur as also the Additional Director General of Police that the witness Lalmuni Devi was not produced under proper security. She was frightened and under heavy stress prior to her examination. She was intimidated inside the Court room prior to her examination.  She was not normal and the Court atmosphere was highly tensed and abnormal. The materials on record led him to conclude that evidence of Lalmuni Devi cannot be said to have been voluntarily made. I am of the considered opinion that had the Presiding Officer of the Court exercised little discretion, this untoward incident ought not have taken place. The Presiding Officer of the Court having found that the witness was not looking normal and, in fact, looking frightened and having not been produced under proper security, he ought to have taken these facts seriously and prevented deflecting the Court of Justice. The direction of this Court to record evidence cannot be construed to mean that the Court was obliged to record her statement despite the fact that she was produced without proper security. I am of the opinion that the Presiding Officer of the Court had also failed miserably in the matter."

The said Habeas Corpus Petition was decided by the Division Bench of the Patna High Court on March 13, 2007. The charges could be framed only on May 26, 2006 by the Presiding Officer of Fast Track Court II, Bhagalpur. By order passed by the High Court in Cr.W.J.C. No. 717 of 2007, the trial was again transferred from Bhagalpur to Patna with five directions which are contained in paragraph 2 of the impugned judgment. After the judgement, the actual proceedings started on June 13, 2008 before the Trial Court at Patna. The trial was re-heard and the witnesses who had been examined by the Additional Sessions Judge, Bhagalpur were also recalled or reproduced for their evidence.

Notably, the Trial Court did not find it necessary to summon the Investigating Officer. Ten witnesses were examined by the prosecution in support of the charges but the I.O. of the case or the officer who had recorded the fardbeyan of one of the deceased Rajendra Rai, was not examined. Rajendra Rai (informant) who had died in Patna Medical College Hospital (PMCH) and the doctor who had held postmortem examination, i.e., Dr. B.D. Prasad, a doctor of PMCH was not examined.

Lalmuni Devi's second statement was recorded on September 29, 2008. After the incident on 25.03.1995 at about 9 A.M., the three injured were taken to the State Hospital Camp, Panapur. The Fard Bayan was registered on the oral statement given by one of the injured (later deceased) Rajendra Rai as recorded by Sub-Inspector N.N. Thakur at 10.30 AM. The said Fard Bayan was signed by the injured Rajendra Rai, two witnesses Narendra Singh, Sanjiv Kumar Singh and by the officer in-charge, Panapur Police Station, Camp Panapur. The Fard Bayan also bears the endorsement of Sub-Inspector N.N. Thakur forwarding it to the Police Station In-charge Masrakh under Sections 147, 148, 149, 307 IPC and Section 27 of the Arms Act for registering the report. Contents of the Fard Bayan have already been reproduced in the earlier part of this judgment. On its basis, FIR was registered at P.S. Panapur as Case No. 62 of 1995 on March 26, 1995. The FIR contains endorsement of various authorities and Courts of its perusal. It also bears the endorsement that Section 302 IPC was added on March 30, 1995. 

The Supreme Court refers to Latin Maxim “qui facit per alium facit per se” means "he who acts through another, acts himself" to conclude that the abduction was the work of Prabunath Singh.

The conclusions recorded in the judgement is based on analysis of the evidence in the light of the legal position which is as follows:
a) Fard Bayan of Rajendra Rai, which was later converted into an FIR, is admissible in evidence and is to be read as a dying declaration or his last statement.  
b) The tainted investigation shows the high-handedness of the accused-Prabhunath Singh, who was a powerful person, being a sitting M.P. of the Ruling Party.
c) The prosecution had established, even through the hostile witnesses, that the date, time, and place of incidence as given in the Fard Bayan of Rajendra Rai were fully established. The only issue was with regard to the identity of the assailants.
d) The post-mortem reports, show that the death of Rajendra Rai and Daroga Rai was homicidal in nature. The medico legal reports supported the prosecution’s story to the extent that the injuries were caused by a fire arm, which proved fatal for two out of the three injured.
e) Adverse inference against the accused is drawn in view of their subsequent conduct.
f) Judicial notice is taken of the judgment in the Habeas Corpus petition dated July 13, 2007 regarding the conduct of the accused, the investigating agency, the Public Prosecutor and the Presiding Officer conducting the trial.
g) The two administrative reports of the respective judges, who were constitutional functionaries, also have to be given due credence and cannot be ignored outright regarding the conduct of the accused, public prosecutor and the Presiding Officer conducting the Trial.
h) The statement of Lalmuni Devi is found to be reliable, and the Courts below wrongly discarded it on the ground that it was hearsay and tutored.
i) The dying declaration and the statement of Lalmuni Devi fully establish that it was Prabhunath Singh, who had caused the injuries from his firearm weapon, which proved to be fatal for two out of the three injured and also caused injury to the third surviving injured, namely Lalmuni Devi.
j) Prabhunath Singh is thus liable to be convicted under Sections 302 and 307 IPC for committing culpable homicide amounting to murder and attempt to murder.
k) The rest of the accused, although named in the chargesheet after due investigation, since their names were not reflected either in the Fard Bayan of the deceased Rajendra Rai (dying declaration) or in the statement of CW-1, therefore, their acquittal is not disturbed.

The judgement concluded that the accused-respondent no.2 is convicted under Sections 302 and 307 IPC for the murders of Daroga Rai and Rajendra Rai and also for attempt to murder of injured Devi. The Secretary, Department of Home, State of Bihar and the Director General of Police, Bihar were directed to ensure that Prabhunath Singh was taken into custody and produced before the Court for hearing on the question of sentence in view of Section 235 of Criminal Procedure Code on September 1, 2023. On Auguts 25, 2023, Prabhunath Singh was permitted by the Court to appear virtually through video conferencing for hearing on question of sentence, instead of the physical appearance. His prayer to permit him to appear virtually was allowed considering his health conditions and the fact that he was already undergoing life sentence in another murder case. His Crl.M.P.No.169246 of 2023 was allowed for him present virtually from jail.

The sentencing order dated September 1, 2023 observes that Section 357 of the Code of Criminal Procedure, 19732 provides that whenever fine is imposed as a sentence, the Court may while passing the judgment, order the whole or in part of the fine recovered to be applied as per clauses (a) to (d) of sub-section (1) thereof. Clause (a) provides for defraying the expenses incurred in the prosecution. We are not inclined to grant any such expenses to the State considering the fact that the State in fact did not prosecute the case fairly, rather throughout assisted the accused. Clause (b) and (d) also will have no application, however, under clause (c) considering the conduct of accused no.2, further the mental, physical, and financial damages suffered by the victim’s family, the two deceased and the injured, we direct that the fine awarded to be paid as damages in the following manner:
a) We award damages of Rs.10 lacs each to the legal heirs of two deceased Rajendra Rai and Daroga Rai. The Trial Court will get a preliminary enquiry conducted with regard to the legal heirs of the two deceased and the amount will be disbursed to the legal heirs as per the law of Succession.
b) Similarly, the amount of fine awarded under section 307 IPC of Rs.5 lacs would be disbursed in the same manner by the Trial Court to the victim if she is alive and if not, to her legal heirs.

It also directed that "Considering the conduct of the State as noticed in the judgment dated August 18, 2023 and also the amount of trauma and harassment faced by the victim’s family, we are of the view that in addition to the damages awarded under section 357 CrPC further compensation be awarded under section 357-A CrPC. The State of Bihar will compensate the legal heirs of the two deceased and the injured if alive otherwise her legal heirs in the like amount of the fine Criminal Appeal No. 1726 of 2015 awarded above i.e. Rs.10 lacs each to the legal heirs of the deceased Rajendra Rai and Daroga Rai and Rs.5 lacs to the injured Smt. Devi or her legal heirs, as the case may be. The amount so deposited will be disbursed in the same manner as provided above for disbursement of the damages under section 357 CrPC."

It further directed that the amount of fine and compensation is to be deposited with the Trial Court within two months from today failing which the same shall be got recovered as arrears of land revenue by the Trial Court.

The compliance report is to be submitted to the Supreme Court by the Trial Court within four months. The Registry is required to circulate the compliance report within the time allowed and the matter is going to be listed with office report for directions.



 

Sushmita Minz, Assistant Collector, ADM Office Rourkela, Odisha found dead in a pond

The dead body of Sushmita Minz (35), Rourkela Assistant Collector was found floating in a pond near a newly constructed sensory park within Plant Site Police Limits in Rourkela, Odisha at around at 3.15 PM on September 19, 2023 by a security guard. He alerted the Plantsite police. Her sandals and personal items, contained in a plastic bag were discovered on the water body’s steps. It is reported that she was looking after issues related to land acquisition. When she did not return home on September 16, Sandeep, her brother had lodged a missing complaint with Uditnagar police in Rourkela on September 17 after he failed to trace her at the ADM office. She was appointed as the Assistant Collector of Rourkela around 18 months ago. She was a native of Rambahal area of Rajgangpur in Sundargarh district. She was staying at her home in Rajgangpur. She used to travel to her workplace at the ADM office in Rourkela. Celestina Minz, Sushmita’s mother is of the view that she has been murdered. It has been reported that some physical injuries were observed on her body. It is inexplicable as to why Sushmita was staying in Radhika Hotel prior to her death. 

Based on the complaint, the police traced her out alive in Radhika Hotel, located near Rourkela Railway Station. Thereupon, on intimation of police, her family went to meet her at the hotel. They found her depressed, and wanted to take her home. Alhough the police had given them assurance to hand her over to them but the police neither handed over Sushmita Minz to her mother and brother nor took her to hospital for medical examination. Reportedly, instead of doing so, she was taken to the police station. Her brother and mother were helpless. They had returned home with full of pain and disappointment.

In this backdrop, the following questions:
1. When the District administration knew about d mental depression condition & communicated d same to the family members through block development officer (BDO) and child development project officer (CDPO), Gurundia, why Sushmita Minz was neither brought to the family nor taken for medical treatment?
2. When Sushmita Minz was under the police surveillance after being traced out from missing,knowing her mental depression,why she was not handed over to the family?
3. When Sushmita Minz was under the police surveillance in Radhika Hotel, near Rourkela railway station how she was found dead in a pond?
4. After the body of Sushmita Minz was identified by the family members, without registering the FIR, how was the dead body sent for post-mortem to Rourkela General Hospital?
5. When Sushmita Minz was under the police surveillance and the District Administration had knowledge that she was undergoing depression, why her family members were not informed anything about her on 18/09/2023 and 19/09/2023?

It has been reported that police received the postmortem report on September 23. The postmortem report states that she had died due to drowning. 

Sundargarh Adivasi Manch gheraoed the office of the Additional District Magistrate (ADM) demanding CBI inquiry under the supervision of SC/HC Judge into the death. It also demanded the arrest of Sundargarh Collector and Rourkela ADM in this case. 

 

Her brother has sought an investigation into the role of Sundargarh Collector, Rourkela ADM, Gurundia BDO, Gurundia CDPO and a woman sub-inspector in her death. The circumstances surrounding the death remains unclear. On September 28, Rourkela SP Mitrabhanu Mahapatra ordered a probe into the matter by DCP-rank officer Banita Majhi. The police investigation is likely to examine all possible angles including her pending divorce petition. If she was married, why her husband's name is not being reported.

Supreme Court questions decisions of Justice Rakesh Kumar, Patna High Court and Janardan Tripathi, Additional Sessions Judge, Bhagalpur in a rape-murder case

On September 4, 2023, Supreme Court's 3-Judge Bench pronounced a 68 page long judgement authored by Justice J.B. Pardiwala setting aside the judgement authored by Justice Rakesh Kumar of Patna High Court and asked the High Court to re-consider the case of death sentence given to Munna Pandey, a resident of Thatheri Tola, Sabour, Bhagalpur who was on visiting term with the family of the victim, the daughter of Kiran Devi and Arvind Sah was found guilty of luring the victim, who was aged about 11 years and carrying her to his house, committing rape and brutally murdering her. The appellant was accused of luring the victim to come to his house to watch TV. The victim went to the house of the appellant in the morning on 31.05.2015 to watch TV and thereafter she went missing. The Court examiend whether the High Court committed any error in passing the impugned judgment. It found that Justice Rakesh Kumar of the "High Court completely forgot that there was a co-accused also namely Pritam Tiwari in the picture. Pritam Tiwari being a juvenile was tried in accordance with the provisions of the Juvenile Justice Act, 2015 and was held guilty and sentenced to three years imprisonment." It is noteworthy that there was involvement of a co-accused Pritam Tiwari in the crime of rape who raised the plea of being a juvenile. His case was separated vide order dated February 3, 2016 passed by the Trial Court and was referred to the Juvenile Justice Board, Bhagalpur. The Trial Court had proceeded only against Munna Pandey. It treated the case as one falling under the category of “rarest of the rare cases” and sentenced him to death.

 

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.



 

Private hospital operators behind murder of Madhubani journalist?

Madhubani journalist Avinash Jha (23) who exposed nursing homes and hospitals in Madhubani district of Bihar has been murdered and burnt allegedly by private hospital operators. He was missing from the night of November 9. On November 12, his body was found lying in a bush between Pali and Urain villages in Benipatti area of Madhubani. His body was handed over to his family members after the postmortem on November 13.  The autopsy report of Avinash Jha shows that he died four days back. The Benipatti police station has registered an FIR against unknown people and had initiated an investigation into the case. Jha was a noted RTI activist as well. He was strangled to death and burnt. 

The police the case of the alleged involvement of an illegal private clinic, nursing homes and pathological lab owners named in the case besides the possibility of a love triangle.

The police has arrested six people, including a woman. 

After Jha went missing, a case was lodged by his elder brother, Chandrashekhar Jha, on November 11 at the police station. Now the case no. (243/21) has been converted into a murder case.

The police has arrested-Roshan Kumar Sah (23), Bittu Kumar Pandit (20), Deepak Kumar Pandit (24), Manish Kumar (21), Pawan Kumar (22) and Jaijairam Paswan’s wife Purnakala Devi (24). 

x