MUNNA PANDEY (APPELLANT) Vs. STATE OF BIHAR (RESPONDENT)

CRIMINAL APPEAL NOS. 1271-1272 OF 2018
(3JB, B.R. GAVAI, J.B. PARDIWALA and PRASHANT MISHRA JJ., delivered by J.B. PARDIWALA, J.)

Facts: The present appeals are at the instance of a convict accused sentenced to death for the offence of rape and murder of a 10-year old girl named “X” and are directed against a common judgment and order passed by the High Court of Judicature at Patna dated 10.04.2018 in the Death Reference No. 4 of 2017 with Criminal Appeal (DB) No. 358 of 2017 by which the High Court dismissed the Criminal Appeal filed by the appellant convict herein and thereby confirmed the judgment of conviction and sentence of death passed by the Additional Sessions Judge, Bhagalpur in the Sessions Trial No. 581 of 2015 for the offence punishable under Sections 302 and 376 resply of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act, 2012.

Issue: Whether the High Court committed any error in passing the impugned judgment?

Arguments on behalf of counsel for appellant:

It is submitted that the case against the Appellant, Munna Pandey is based only on the last seen evidence and the conduct of the Appellant and hence entirely circumstantial in nature. It is a well established principle settled by this Hon’ble Court that in cases of circumstantial evidence, the circumstances against the accused ought to be conclusive in nature and there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. In cases of rape where the victim is dead and the offence is sought to be established only by circumstantial evidence, medical evidence assumes great importance. The failure of the prosecution to subject the appellant to medical examination is fatal to the prosecution’s case. Prosecution did not place on record the exculpatory evidence against the Appellant. Last seen evidence not conclusively proved against the Appellant. Alleged Confession of Pritam Tiwari implicating Munna Pandey cannot be relied upon. Examination of the Appellant was not conducted in a proper manner. The Trial Court in its judgment makes only a brief discussion of the evidence and erroneously records that Pritam Tiwari and Munna Pandey were found inside the house. The High Court has disregarded the evidence of the independent witness and also the absence of material evidence, compliance with section 53A requirements, the absence of FSL report and pathological report. Hence the said judgment suffers from perversity and is contrary to the law

Arguments on behalf of counsel for respondent: Mr. Samir Ali Khan

He submitted that no error, not to speak of any error of law, could be said to have 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 submitted that 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 the PW 3 Priya Kumari 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 16 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 and tendency. 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. 17. In such circumstances referred to above, the learned counsel prayed that there being no merit in these appeals, those may be dismissed

Held: The court allowed the present appeal and set aside the impugned order and remitted the matter back to the High Court for deciding the reference under Section 366 of the CrPC in the manner it ought to have been decided, more particularly keeping in mind the serious lapses on the part of the defence in not proving major contradictions in the form of material omissions surfacing from the oral evidence of the prosecution witnesses. The court observed that “Justice has nothing to do with what goes on in the courtroom; Justice is what comes out of a courtroom.”

The court observed further that, “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. 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.”