MUNNA PANDEY v. STATE OF BIHAR

Citation: 2023 INSC 793, [2023] 11 S.C.R. 1005

Court: Supreme Court of India

Bench: B.R. GAVAI, J.B. PARDIWALA AND PRASHANT KUMAR MISHRA, JJ.

Judgment text

SUPREME COURT OF INDIA MUNNA PANDEY v. STATE OF BIHAR Criminal Appeal Nos. 1271-1272 of 2018 [2023] 11 S. C. R. 1005 : 2023 INSC 793 CASE DETAILS MUNNA PANDEY v. STATE OF BIHAR (Criminal Appeal Nos. 1271-1272 of 2018) SEPTEMBER 04, 2023 [B. R. GAVAI, J. B. PARDIWALA AND PRASHANT KUMAR MISHRA, JJ. ] HEADNOTES Issue for consideration: Whether the High Court erred in confi rming the conviction and death sentence passed by trial court against appellantaccused for off ences punishable u/ss. 302, 376, IPC and s. 4, POCSO Act, 2012, despite serious lapses in the entire investigation. Penal Code, 1860 - ss. 302, 376 - Protection of Children from Sexual Off ences Act, 2012 - s. 4 - Serious lapses in investigation, confi rmation of conviction and death sentence - Propriety: Held: s.

162, CrPC does not prevent a Judge from looking into the record of the police investigation - Being a case of rape and murder of a 10 year old girl and as the evidence was not free from doubt, the Trial Judge ought to have acquainted himself with the important material and also with what the only important witnesses of the prosecution had said during the police investigation - There is nothing in s.

162, CrPC which prevents a Trial Judge from looking into the papers of the chargesheet suo motu and himself using the statement of a person examined by the police recorded therein for the purpose of contradicting such person when he gives evidence in favour of the State as a prosecution witness - The Judge may do this or he may make over the recorded statement to the lawyer for the accused so that he may use it for this purpose - Case of the witnesses before the police was that it was co-accused who had come to the house of the victim on the fateful day and had taken her to his house to watch TV - All the statements further reveal that it was co-accused who was found locking the door when the witnesses enquired with him about the whereabouts of the victim- However, neither 1005 1006 SUPREME COURT REPORTS [2023] 11 S. C. R.

the defence counsel nor the public prosecutor nor the presiding offi cer of the Trial Court and even the High Court thought fi t to look into the aforesaid aspect of the matter and try to reach to the truth - The presiding offi cer of the Trial Court remained a mute spectator - It was the duty of the presiding offi cer to put relevant questions to these witnesses in exercise of his powers u/s. 165, Evidence Act - Impugned judgment set aside - Matter remitted back to the High Court for deciding the reference u/s. 366, CrPC 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 - Code of Criminal Procedure, 1973 - ss. 162, 366 - Evidence Act, 1872 - s. 165. [Paras 39, 40, 43, 47 and 73] Code of Criminal Procedure, 1973 - s. 162 - Proviso - 'Purpose' mentioned therein: Held: s.

162 says that no statement made by any person to a police offi cer in the course of an investigation, whether it be recorded or not, shall be used for the purpose save as provided in the fi rst proviso to the Section - The fi rst proviso says that when any witness, whose statement has been reduced into writing by the police in accordance with the provisions of the CrPC, is called for the prosecution in inquiry or trial the accused with the permission of the court may contradict the witnesses in the manner provided by s.

145, Evidence Act - The purpose mentioned in the proviso is the purpose of contradicting the evidence given in favour of the State by a prosecution witness in Court by the use of the previous statement made by such witness to the police offi cer - Purpose is to discredit the evidence given in favour of the prosecution by a witness for the State - The Section prohibits the use of the statement for any other purpose than this - It does not say that the statement can only be used at the request of the accused - The limitation or restriction imposed in the fi rst part of s.

162 relates to this purpose for which the statement may be used; it does not relate to the procedure which may be adopted to eff ect this purpose - The proviso which sets out the limited purpose also mentions the way in which an accused person may contradict the witness with his previous statement made to the Police, but it does not in any other way aff ect the power that lies in the Court to look into documents or put questions to witnesses suo motu - Evidence Act, 1872 - s. 165. [Para 46] MUNNA PANDEY v. STATE OF BIHAR 1007 Practice and Procedure - Criminal Law - Duty of Presiding Judge - Evidence Act, 1872 - s. 165: Held: In many sessions cases when an advocate appointed by the Court appears and particularly when a junior advocate not having 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 s.

145, Evidence Act - No Court should allow a witness to be contradicted by reference to the previous statement in writing or reduced to writing unless the procedure set out in s. 145, Evidence Act has been followed - It is possible that if the attention of the witness is drawn to these portions with reference to which it is proposed to contradict him, he may be able to give a perfectly satisfactory explanation and in that event the portion in the previous statement which would otherwise be contradictory would no longer go to contradict or challenge the testimony of the witness - In a case like the present one, where the evidence given in Court implicates persons who not mentioned in the FIR 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.

[Paras 47 and 48] Code of Criminal Procedure, 1973 - s. 53(1), 53A - Medical examination - Importance - Circumstantial evidence - Rape victim dead: Held: s. 53(1) enables a police offi cer 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 aff ord such evidence, whenever a person is arrested on a charge of committing an off ence of such a nature that there are reasonable grounds for believing that an examination of his person will aff ord evidence as to the commission of an off ence - By Amendment Act 25 of 2005, a new Explanation was substituted u/s. 53, in the place of the original Explanation - Simultaneously with the substitution of a new Explanation u/s. 53, Act 25 of 2005 also inserted a new provision i. e. s.

53A - Medical examination of an accused assumes great importance in cases where the victim of rape is dead and the off ence is sought to be established only by circumstantial evidence - Penal Code, 1860 - ss. 302, 376 - Code of Criminal Procedure (Amendment) Act, 2005. [Paras 25-27 and 29] 1008 SUPREME COURT REPORTS [2023] 11 S. C. R. Code of Criminal Procedure, 1973 - s. 313 - Additional circumstances relied upon, not put to the appellant - Impropriety: Held: The further statement of the appellant-convict was recorded u/s. 313 - It was shocking to see the manner in which the Trial Court recorded the same - In all, four questions were put to the appellant to enable him to explain the incriminating circumstances pointing towards his complicity in the alleged crime - However, for holding the appellant guilty of the alleged crime, the Trial Court looked into the additional circumstances none of which were put to the appellant so that he could off er a proper explanation to the same.

[Para 32] Evidence Act, 1872 - ss. 145, 161 - Duty of defence counsel, public prosecutor: Held: 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 - The defence counsel had no idea how to contradict a witness with his or her police statements in accordance w/s. 145, Evidence Act - Lapse on the part of public prosecutor is also 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 u/s. 161 - It was his duty to bring to the notice of the witnesses and confront them with the same even without declaring them as hostile - 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 w/s.

145, 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 u/s. 145, Evidence Act and bring them on record - It is the duty of the defence counsel to do so . [Paras 41 and 50] Code of Criminal Procedure, 1973 - Chapter XXVIII- ss. 366- 371; Chapter XXIX- ss. 372-394 - Role and duty of High Court in confi rmation cases: Held: 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 confi rmation" MUNNA PANDEY v. STATE OF BIHAR 1009 is a proceeding in continuation of the trial - ss.

367, 368 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 - Scope of the chapter is wider - Chapter XXIX deals with "Appeals" - s. 391 also entitles the appellate court to take further evidence or direct such further evidence to be taken - s. 386 then enumerates powers of the appellate court which inter alia includes the power to "reverse the fi nding 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" - Powers of the appellate court are equally wide - The High Court in the present case was exercising powers both u/Chapters XXVIII and XXIX, CrPC - ss.

367, 368 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 considered desirable in order to ascertain the guilt or the innocence of the convicted person. [Paras 58 and 59] Code of Criminal Procedure, 1973 - ss. 367, 368 and proviso thereto - Duty of High Court u/s. 367: Held: Under the proviso to s. 368, no order of confi rmation 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 fi led by a condemned prisoner, that appeal has to be disposed of before any order is made in the reference confi rming the sentence of death - In disposing of such an appeal, however, it is necessary that the High Court should keep in view its duty u/s.

367 - It 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 justifi ed and the sentence of death should be confi rmed. [Para 59] Criminal Law - Criminal justice system - Accusatorial/adversarial system: Held: For the dispensation of criminal justice, India follows the accusatorial or adversarial system of common law - In the accusatorial or 1010 SUPREME COURT REPORTS [2023] 11 S. C. R. adversarial system, the accused is presumed to be innocent; prosecution and defence each put their case; judge acts as an impartial umpire and while acting as a neutral umpire sees whether the prosecution has been able to prove its case beyond reasonable doubt or not.

[Para 66] Constitution of India - Article 21 - Free and fair trial, a sine-quanon: Held: Free and fair trial is sine-qua-non of Article 21 - If the criminal trial is not free and fair, then the confi dence of the public in the judicial fairness of a judge and the justice delivery system would be shaken - Denial to fair trial is as much injustice to the accused as to the victim and the society - 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. [Para 67] Criminal Law - Criminal justice system - Role of a judge in dispensation of justice - Discussed.

[Para 53, 54, 68 and 70] Committees - Malimath Committee on Judicial Reforms - Duty of Courts to search for truth - Observations of the Committee - Discussed. [Para 69] LIST OF CITATIONS AND OTHER REFERENCES Jumman v. State of Punjab AIR 1957 SC 469: Rama Shankar Singh @ Ram Shankar Roy v. State of West Bengal AIR1962 SC 1239: [1962] Suppl. SCR 49; Bhupendra Singh v. State of Punjab AIR 1968 SC 1438: [1968] SCR 404; Chotkau v. State of Uttar Pradesh (2023) 6 SCC 742; Tara Singh v. State AIR 1951 SC 441: [1951] SCR 729; V. K. Mishra v. State of Uttarakhand, (2015) 9 SCC 588: [2015] 8 SCR 1; Raghunandan v. State of U. P. (1974) 4 SCC 186: [1974] 3 SCR 92, Dandu Lakshmi Reddy v. State of A. P. (1999) 7 SCC 69: [1999] 1 Suppl. SCR 535; State of Rajasthan v. Ani @ Hanif and Ors. (1997) 6 SCC 162: [1997] 1 SCR 199; Ram Chander v. State of Haryana (1981) 3 SCC 191: [1981] 3 SCR 12; Masalti v. State of U. P. (1964) 8 SCR 133; Kunal Majumdar v.

State of Rajasthan (2012) 9 SCC 320: [2012] 8 SCR 706 - relied on. MUNNA PANDEY v. STATE OF BIHAR 1011 Sessions Judge, Nellore v. Intha Ramana Reddy 1972 Cri. L. J. 1485 - referred to. Jones v. National Coal Board 1957 (2) All ER 155 (CA) - referred to. Sarkar (1999, 15th pp. 2319 etc. ); Phipson (Evidence, 1999, 15th Ed, para 1. 21) - referred to. OTHER CASE DETAILS INCLUDING IMPUGNED ORDER AND APPEARANCES CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 1271-1272 of 2018. From the Judgment and Order dated 10. 04. 2018 of the High Court of Judicature at Patna in DR No. 4 of 2017 and CRADB No. 358 of 2017. Appearances: Dr. Aditya Sondhi, Sr. Adv. , Ms. Aishwarya Saranga, Ms. Meghana Tm, Ms. Harini Raghupathi, Kabir Dixit, Advs. for the Appellant. Samir Ali Khan, Pranjal Sharma, Advs. for the Respondent. JUDGMENT / ORDER OF THE SUPREME COURT JUDGMENT J. B. PARDIWALA, J.

: "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. " ─ Harry Browne 1. These appeals are at the instance of a convict accused sentenced to death for the off ence 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 fi led by the appellant convict herein and thereby confi rmed the judgment of conviction and sentence of death 1012 SUPREME COURT REPORTS [2023] 11 S. C. R. passed by the Additional Sessions Judge-I, Bhagalpur in the Sessions Trial No.

581 of 2015 for the off ence punishable under Sections 302 and 376 resply of the Indian Penal Code (for short, 'IPC') and Section 4 of the Protection of Children from Sexual Off ences Act, 2012 (for short, 'POCSO Act'). 2. Before we proceed to give a fair idea as regards the prosecution case, it has to be mentioned that the High Court had before it not only the appeal fi led by the accused but also a reference made by the Sessions Court for confi rmation 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 confi rmation 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. From the long line of decisions which have taken this view it would be enough to refer to the decisions in Jumman v. State of Punjab, AIR 1957 SC 469; Rama Shankar Singh @ Ram Shankar Roy v. State of West Bengal, AIR 1962 SC 1239; and Bhupendra Singh v. State of Punjab, AIR 1968 SC 1438. FACTS OF THE CASE 3. The facts of the case as recorded by the High Court in its impugned judgment are stated hereinbelow:- "3. Short fact of the case is that on 01. 06. 2015 at about 12:45 PM, fardbeyan of Kiran Devi (P. W. 2) wife of Arvind Sah and mother of the victim was recorded by Sub-Inspector of Police-cum-S. H. O. Smt. Rita Kumari of Sabour Police Station.

The fardbeyan was recorded in the house of Nawal Kishore Ojha @ Fuchan Pandey. Nawal Kishore Ojha @ Fuchan Pandey is the own brother of the appellant and in the said house, there were two rooms and one room, from where dead body was recovered, was in possession of the appellant. In the fardbeyan, the informant/P. W. 2 stated that on preceding date i. e. 31. 05. 2015, she was in the house of her late sister Shakila Devi in the village Jamunia Parbatta. On the same date at about 12:00 MUNNA PANDEY v. STATE OF BIHAR 1013 [J. B. PARDIWALA, J. ] noon, her elder daughter namely Priya Kumari (P. W. 3) telephonically informed her that her younger sister (victim) was missing. Thereafter, she immediately moved for Sabour. After arrival in her house in village Sabour, her elder daughter Priya informed her that the victim had gone to watch television in the house of Munna Pandey (appellant). When she did not return till 11:00 AM, only thereafter, she (Priya) informed the informant.

While the informant went to the house of Munna Pandey (appellant) in search of her daughter, she found that the house of Munna Pandey (appellant) was locked. Thereafter, with some villagers, the informant vigorously searched her daughter, but she (victim) could not be traced. When Munna Pandey (appellant) was asked to open the lock, he told that key was not with him. Thereafter, she telephoned Fuchan Pandey (brother of appellant Munna Pandey), who at the relevant time was staying in his in-laws' house. On 01-06-2015, Nawal Kishore Ojha @ Fuchan Pandey at about 12:00 noon came to his house and opened the lock of his room. In the said room, Pritam Tiwary son of Dilip Tiwary, resident of village Shobhapur, P. S. Rajmahal, District - Sahebganj had concealed himself. The lock of the room was opened from the outside. When lock of the room of Munna Pandey (appellant) was opened, dead body of the daughter of the informant was found beneath the bed.

The informant claimed that Pritam Tiwary and Munna Pandey (appellant) both after committing rape with her 11 years old daughter by way of throttling had killed her and the dead body was concealed in his room. The fardbeyan was read over to the informant and after fi nding it correct, she, in presence of Babloo Sao (P. W. 1), son of informant's sister of village Jamunia, P. S. Parbatta, Naugachia, put her signature. " 4. On the basis of the complaint (Fardbeyan) lodged by the mother of the victim PW 2 - Kiran Devi, the police registered a formal First Information Report (FIR) on the very same day i. e. on 01. 06. 2015 at 3. 00 pm at the Sabour Police Station as Case No. 106 of 2015 for the off ence punishable under Sections 376(D), 302, 201 read with Section 34 of the IPC and Section 4 of the POCSO Act against the appellant herein and co- accused Pritam Tiwari (brother-in-law of the elder brother of the appellant namely Naval Kishore Ojha @ Fuchan Pandey).

1014 SUPREME COURT REPORTS [2023] 11 S. C. R. 5. On conclusion of the investigation, charge sheet was fi led against the appellant herein and the co-accused named above. As the off ence was exclusively trialable by a Sessions Judge, the case stood committed by the Magistrate to the Court of Sessions under the provisions of Section 209 of the CrPC and upon committal, the same came to be registered as the Sessions Trial No. 581 of 2015 in the Court of the First Additional District and Sessions Judge, Bhagalpur. 6. The Trial Court framed charge vide order dated 04. 11. 2015 against the appellant and the co-accused for the off ence punishable under Sections 376(2)(g), 302 read with Section 34, 120B of the IPC and Section 4 of the POCSO Act. 7. After framing of the charge, the co-accused namely Pritam Tiwari raised the plea of being a juvenile. In such circumstances, his case was separated vide order dated 03. 02.

2016 passed by the Trial Court and was referred to the Juvenile Justice Board, Bhagalpur. The Trial Court proceeded only against the appellant convict herein. 8. In the course of the trial, the prosecution led the following oral evidence:- (a) PW 1 Babloo Saw is the cousin brother of the deceased and son of sister of the First Informant at whose place, the informant had gone on 31. 05. 2015. This witness proved his signature on the fardbeyan, which was marked as Ext. 1 and he also proved the signature of Kiran Devi/P. W. 2 (informant) of the case, which was marked as Ext. 1/1. (b) PW 2 Kiran Devi is the informant and mother of the deceased. (c) PW 3 Priya Kumari is the elder daughter of the informant and also the elder sister of the deceased. (d) PW 4 Dr. Sandeep Lal, who at the relevant time, was posted in the Jawaharlal Nehru Medical College and Hospital, Bhagalpur conducted the post-mortem examination on the dead body of the deceased.

(e) PW 5 Rita Kumari is the investigating offi cer and she recorded the fardbeyan of the informant. MUNNA PANDEY v. STATE OF BIHAR 1015 [J. B. PARDIWALA, J. ] (f) PW 6 Vijay Prasad Sah is a co-villager and he deposed that in his presence, the dead body was recovered from the room of the appellant. 9. Upon conclusion of recording of the oral evidence, the further statement of the appellant convict was recorded by the Trial Court under Section 313 of the CrPC. The appellant convict stated as under:- "I am innocent. I have been falsely implicated. I was not living in the house from where the dead body was recovered. I was residing in a rented house situated in Mali Tola. I executed a deed in favour of my brother Fuchan Pandey relating to an parental house situated at Thatheri Tola and my brother Fuchan Pandey was living in the house from where the dead body was recovered. " 10.

Upon appreciation of the oral and documentary evidence on record, the Trial Court recorded a fi nding that the appellant herein was guilty of the off ence he was charged with. The Trial Court treated the case as one falling under the category of "rarest of the rare cases" and sentenced the appellant to death. 11. The appellant herein being aggrieved with the judgment and order of conviction and capital sentence passed by the Trial Court went in appeal before the High Court. The High Court dismissed the appeal fi led by the appellant convict and confi rmed the capital sentence imposed by the Trial Court in the Death Reference No. 4 of 2017. 12. In such circumstances referred to above, the appellant convict is here before this Court with the present appeals. SUBMISSIONS OF THE APPELLANT 13. Dr. Aditya Sondhi, the learned senior counsel appearing for the appellant convict, made the following submissions:- "1 . Case purely of circumstantial evidence 1.

1 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 1016 SUPREME COURT REPORTS [2023] 11 S. C. R. 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. 2. Failure to conduct medical examination u/s 53A CrPC is fatal to the case of the prosecution. 2. 1 Medical examination of the accused u/s 53A of CrPC is required in cases of rape.

Even though the Appellant was taken to the hospital for the treatment of his injuries incurred during the time of arrest, he was not subjected to any such medical examination where his samples were collected for the purpose of DNA examination. 2. 2 In cases of rape where the victim is dead and the off ence 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. (Chotkau v State of Uttar Pradesh 2022 SCC Online SC 1313 para 81,82) 2. 3 If no DNA examination is conducted and if no reasonable explanation is provided by the prosecution for not conducting a DNA examination, adverse consequences would fall on the prosecution.

Moreover, if reasonable grounds for believing that an examination of the accused will not aff ord evidence as to the commission of an off ence, it is quite unlikely that a charge-sheet would even be fi led against the accused for committing an off ence of rape. (Rajendra Prahladrao Wasnik v State of Maharashtra (2019) 12 SCC 495 para 49-57; Prakash Nishad @ Kewat v State of Maharashtra 2023 SCCOnline SC 666 para 57,58. 59) 3. Prosecution did not place on record the exculpatory evidence against the Appellant 3. 1 The underwear of the Appellant was seized by the police on 01. 06. 2023 at 11:45 pm [Ex 6 (Seizure memo)], and the underwear of the deceased was seized on 01. 06. 2015 at 11:00 pm [Ex 6/1 (Seizure memo)]. However, the prosecution failed to prove if they were sent to the Forensic Science Laboratory for examination. MUNNA PANDEY v. STATE OF BIHAR 1017 [J. B. PARDIWALA, J. ] 3. 2 As per the order dated 29. 06.

2015, a letter on behalf of the offi cer in-charge of PS Sabour was fi led before the Ld Trial Court seeking permission to send the articles to FSL Patna for examination. However PW5, Reeta Kumari, the IO in her cross examination before the Trial Court on 24. 10. 2016 admitted that she followed the instructions of her senior police offi cer and did not receive any FSL report. [PW5 para 8] 3. 3 Further the vaginal swab of the deceased collected at the time of post-mortem was sent by PW 4, Dr Sandeep Lal to the pathology lab for examination. [Ex 2 (Post- mortem report)]. However, the pathological report which states that 'spermatozoa not found' was not produced by the prosecution as evidence at the time of trial. 4. Last seen evidence not conclusively proved against the Appellant 4. 1 All the witnesses in their 161 statement stated that the victim was last seen with Pritam Tiwari.

However, PW1, PW2 and PW3 in their Court testimony, which was recorded 3 months after Pritam Tiwari was declared a Juvenile by the Juvenile Justice Board [Ex A (order of the JJB)] improved their statement and said that it was Munna Pandey and not Pritam Tiwari. However, this was not corroborated by the independent witness Vijay Sah (PW6). The said improvement on the part of the interested witnesses could be motivated by the fact that Pritam Tiwari (who was caught red handed) was now only going to be subjected to a lenient punishment under the Juvenile Justice Act, 2000 and therefore the Appellant alone remained accused in the subject case. 4. 2 There are material contradictions in PW3's court testimony and her 161 statement. In her 161 statement she states that Pritam Tiwari came to her house at 09:00 am and took the victim along with him to watch TV and after 2 hours she saw Pritam Tiwari locking the grill of the verandah.

Whereas in her Court testimony, she states that Munna Pandey was last seen with the victim. PW3 was confronted with this particular contradiction by the defense counsel during her cross- examination but PW3 does not provide any reason for the said contradiction. 1018 SUPREME COURT REPORTS [2023] 11 S. C. R. 4. 3 PW2 in her Fardbeyan [Ex 1] which was recorded right after the victim's body was recovered does not mention anything about the Appellant in the context of a last seen evidence but improves her testimony in Court to state that the Appellant was last seen with the victim. PW2 was confronted with this improvement in her cross examination, where she merely stated that she had told that Munna Pandey had spoken to her daughter PW3 and that she did not state in her fardbeyan that PW3 saw Munna Pandey locking the door.

This Hon'ble Court has held that especially in cases involving heinous crimes, where there is inadequate cross-examination by the defense counsel, the Trial Courts cannot be a mute spectator and they have the power and duty under Section 165 of the Evidence Act, 1872 to discover relevant facts when witnesses are not properly cross-examined. (Rahul v State of NCT of Delhi (2023) 1 SCC 83 para 42-45) 4. 4 As per the case of the prosecution, on 31. 05. 2015 at 09:00 when the Appellant came to the house of PW3 to take the victim, the following persons were in the house - the victim, PW3 and Kushboo Devi (her aunt). However Kushboo Devi, the aunt was not examined as a last seen witness but only PW3 (a minor) was examined by the prosecution to prove its case. 4. 5 In cases where the child witness's testimony regarding last seen evidence is inconsistent and when the material witnesses are not examined by the prosecution, the Court has rightly disbelieved the last seen evidence.

(Digamber Vaishnav v State of Chhatisgarh (2019) 4 SCC 522 para 40-43) 5. Conduct of the accused at the relevant time 5. 1 Frequent quarrels used to take place between Naval Kishore Ojha @ Fucchan Pandey and Munna Pandey and hence they have been residing separately. Munna Pandey was residing separately in a diff erent house in Mali Tola. Fuchhan Pandey handed over the key to his house to Pritam Tiwari and Pritam Tiwari was residing in the house of Fucchan Pandey for the past 2 to 3 months. Further, Munna Pandey was called from elsewhere by the villagers every time, indicating that he did not reside in the said house. MUNNA PANDEY v. STATE OF BIHAR 1019 [J. B. PARDIWALA, J. ] 5. 2 As per the spot map and the spot mahazar, the building consists of an outer iron grill door, a verandah, 1 room in the north and 1 in the south. The room in the north belongs to Fuchhan Pandey and the room in the south belongs to Munna Pandey.

Pritam was found inside the room of Fucchan Pandey and the victim was found in the room of Munna Pandey. The room of Munna Pandey also had 2 windows without any iron grill but only an outer wooden panel which was open. One window opened to the verandah and the other window opened towards the main road. The TV was in the room of Fucchan Pandey where Pritam was admittedly residing. 5. 3 The lock of the outer iron grill was broken open by the villagers. The room of Fuchhan Pandey, where Pritam Tiwari was present was locked from inside. The door of Munna Pandey's room was opened by the keys brought by Fuchhan Pandey on 01. 06. 2015 [Ex 1]. 5. 4 As per the case of the prosecution, the door of Munna Pandey's room was opened by the villagers after they snatched the keys from Munna Pandey although he claimed that he did not have the keys to the house on the previous day. As per the prosecution, this raised serious doubts regarding his conduct.

It is pertinent to note that this suspicious conduct is not corroborated by the independent witness PW6. Further, the villagers Manoj, Anil and Murrai who allegedly snatched the keys from Munna Pandey were not examined by the prosecution. It is pertinent to note that Munna Pandey did not fl ee from the village overnight or on the next day when the dead body of the victim was recovered. Further this particular circumstance that the Appellant refused to give the keys to the villagers and threatened them with a case of dacoity was not put to him during his 313 statement. This Hon'ble Court has repeatedly held that the circumstances not put to the accused in his 313 examination cannot be relied upon. (Sharad Birdichand Sarda v State of Maharashtra (1984) 4 SCC 116 para 145) 6. Alleged Confession of Pritam Tiwari implicating Munna Pandey cannot be relied upon 6.

1 As per the prosecution, right after Pritam Tiwari was found in the house of Fucchan Pandey by the villagers; he confessed to his crime and stated that he along with Munna Pandey committed the off ence 1020 SUPREME COURT REPORTS [2023] 11 S. C. R. against the deceased. However, the said confession was made after he was beaten by the police offi cers and was made in the presence of police offi cers. Due to the bar u/s 26 of the Evidence Act, the said confession cannot be relied upon the Courts. Further this alleged confession is not corroborated by the testimony of the independent witness Vijay Sah (PW6). Pritam Tiwari was also not deposed as a witness in this regard. 7. 313 examination of the Appellant was not conducted in a proper manner 7. 1 Many crucial circumstances were not put to the Appellant in his 313 examination, though were considered as incriminating for the purpose of holding the appellant guilty of the off ence.

Those are as under:- • The circumstance of PW3 seeing the Appellant lock the grill and the door of his room • The circumstance that the Appellant gave false information to PW3 that the victim had already left after watching TV • The circumstance of the accused refusing to open the door as he did not have the key • The circumstance of the Appellant giving the keys to the villagers after he was assaulted • The circumstance of the alleged extra-judicial confession made by the co-accused Pritam Tiwari implicating the Appellant 7. 2 This Hon'ble Court has consistently held that the circumstances not put to the Appellant cannot be relied upon to convict an accused 8. Flaws in the judgment of the Trial Court and the High Court 8. 1 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. 8.

2 The High of Judicature at Patna, in the impugned judgment [at para 9]; observes that it is prima facie satisfi ed that the Trial Court has not committed any error in both convicting the Appellant and sentencing him to death. In its said prima facie opinion on the matter it heavily MUNNA PANDEY v. STATE OF BIHAR 1021 [J. B. PARDIWALA, J. ] relies on the deposition of interested witnesses PW1, PW2 and PW3 all of whom improved their versions. 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 suff ers from perversity and is contrary to the law 9. Mitigation 9. 1 Without prejudice to the above submissions on merits, the Courts below have incorrectly sentenced the Appellant to undergo the sentence of death. 9.

2 The Appellant has fi led a mitigation report along with the affi davits of the family members and the villagers before this Hon'ble Court vide IA No 172211 of 2022. The following are the mitigating circumstances of the Appellant: (i) No criminal antecedents; (ii) Satisfactory jail conduct as certifi ed by the Superintendent of Shahid Jubba Sahni Central Jail, Bhagalpur; (iii) Family impact - since his arrest, his family including his wife Sangeeta and his 2 sons - Krishna (18 years at the time of incident) and Balram (12 years at the time of incident) were ostracized from the village and they have been residing with Sangeeta's parents in village Panchkathiya, Bihar (iv) Continued family ties (v) Strong community links - Munna Pandey's wife Sangeeta was elected as the ward councilor in 2010. As per the affi davit of Mohd. Aktar @ Pairu Miyan (resident of village Sabour) the Appellant worked actively for the community alongside his wife.

He was considered resourceful and many villagers approached him with their problems in the village. (vi) Age of the Appellant - he is currently 56 years old (vii) Strong probability of reformation" (Emphasis supplied) 1022 SUPREME COURT REPORTS [2023] 11 S. C. R. 14. In such circumstances, referred to above, the learned counsel prayed that there being merit in his appeals, the same be allowed and the judgment and order of conviction and capital sentence be set aside and the appellant may be acquitted of all the charges. SUBMISSIONS ON BEHALF OF THE PROSECUTION 15. On the other hand, these appeals were vehemently opposed by Mr. Samir Ali Khan, the learned counsel appearing on behalf of the State. 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 off ence charged with and treating the case to be one falling under the category of "rarest of the rare cases". 16.

The learned counsel laid much stress on the fact that it was the appellant who visited the house of the victim at 9 o'clock in the morning of 31. 05. 2015 and lured the victim to come to his house to watch TV. It was argued that all the witnesses have deposed that the victim went to the house of the appellant in the morning on 31. 05. 2015 to watch TV and thereafter she went missing. He submitted that the sister of the victim namely Priya Kumari (PW 3) immediately informed her mother Kiran Devi (PW 2) who at the relevant point of time was at the house of her sister at a diff erent village. No sooner the mother of the victim came to know that her daughter was missing, then she immediately rushed back to her house and started enquiring as regards the whereabouts of her minor daughter. It was argued that the victim could be said to have been last seen with the appellant.

It was also argued that when the house 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. 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 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 MUNNA PANDEY v. STATE OF BIHAR 1023 [J. B. PARDIWALA, J. ] 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. ANALYSIS 18. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the High Court committed any error in passing the impugned judgment? 19. The case on hand is one of a very gruesome rape and murder of a 10-year old girl. It is the case of the prosecution that on the fateful day the victim had gone to the house of the appellant to watch TV. According to the prosecution, it is the appellant who came to the house of the victim and persuaded her to come at his house to watch TV. The elder sister of the victim, PW 3 Priya Kumari was at home when her younger sister left for the house of the appellant to watch TV.

When the younger sister did not come back to her house, Priya Kumari started searching for her and as her eff orts failed to know the whereabouts of her younger sister, she immediately informed her mother Kiran Devi (the fi rst informant). At the relevant time, Kiran Devi was at the house of her elder sister namely Shakila Devi at Jamunia Parbatta. The PW1 Babloo Saw is the son of Shakila Devi. The PW 2 Kiran Devi happens to be the mousi of PW 1 Babloo Saw. It is the case of the prosecution that while Kiran Devi was at the house of her elder sister Shakila Devi, she was informed by Priya Kumari on telephone that the victim had gone to the house of the appellant in the morning to watch TV and thereafter she went missing. It was PW 1 Babloo Saw who brought Kiran Devi on his motorcycle back to her village i. e. her house. 20. We shall now look into the fi ndings recorded by the High Court in its impugned judgment.

To put it in other words, the circumstances relied upon by the High Court and the line of reasoning to hold the appellant herein guilty of the alleged crime is as follows:- "9 . ... To start with, it would be fi rstly necessary to examine the fi rst hand information, which has come from the mouth of elder daughter of the informant i. e. P. W. 3 namely Priya Kumari. She was the main 1024 SUPREME COURT REPORTS [2023] 11 S. C. R. witness, who had seen that appellant had persuaded and enticed the victim to go with him on the pretext of witnessing T. V. serial. 10. ... Munna Pandey (appellant) carried the victim, at that time, it was about 9:00 AM (morning). After preparing food, she went to call the victim to the house of Munna Pandey (appellant), then she saw that Munna Pandey (appellant) was putting lock on his door. She saw that Munna Pandey (appellant), after putting lock on his room, was coming out.

When she reached near the gate, till that time, Munna Pandey (appellant), after putting lock on gate also, was trying to move, then she asked Munna Pandey as to where is the victim, Munna Pandey (appellant) replied that she, after witnessing T. V. , had already gone. P. W. 3 thereafter returned back to her house and tried to search nearby. When she did not fi nd the victim then she made telephone call to her mother (P. W. 2, Kiran Devi) and informed her. Her mother on the same date came back with her (Priya) cousin brother Babloo (P. W. 1). Again, this witness narrated everything to her mother. Thereafter, she, her mother, aunt and cousin brother Babloo, all jointly started to search, but the victim was not traced, then they went to the house of Munna Pandey (appellant), where it was noticed that there was lock on the room of Munna Pandey (appellant). Outer gate was also locked. Thereafter, she inquired from other villagers, on which, villagers called Munna Pandey, then he came.

The appellant was inquired by villagers and her mother (P. W. 2) also regarding the victim. The appellant said that he was not having the key of the room. After noticing this fact, the villagers said that if he was not having key, they will break the lock. On which, the appellant threatened them for implicating in dacoity case, if lock is broken. Munna Pandey (appellant) also stated that Pritam (co-accused) was also not being located and he said that it appears that he had gone somewhere with the victim. On the strength of such statement of Munna Pandey (appellant), they started to search Pritam also, however; he could not be traced and thereafter, they returned back to their house and again they went to the house of Munna Pandey (appellant), where she noticed that some light was coming from inside the house of Fuchan Pandey. Thereafter, the villagers raised some suspicion, as if, in the room, there was someone.

Munna Pandey (appellant) was again asked to break the lock, then he said that key MUNNA PANDEY v. STATE OF BIHAR 1025 [J. B. PARDIWALA, J. ] was lying with Fuchan Pandey. Villagers thereafter telephoned Fuchan, at that very time, he was in his in-laws' house. Fuchan over telephone informed that in the morning, he would come. Since by 8:00 AM, Fuchan did not arrive, P. W. 3 with her mother went to Sabour Police Station, however; in the meanwhile, Fuchan reached to his house. Villagers by using force also pushed Munna and carried him to the said place. Thereafter, police also arrived there. Lock of outer gate was broken. Thereafter, the key of the room was provided by Munna Pandey (appellant). From the room of Fuchan, Pritam Tiwary came out. In presence of the Police and villagers, Pritam was inquired as to where was the victim, then he explained that victim was in the room of Munna Pandey (appellant).

Pritam also said that he and Munna Pandey both had jointly raped the victim and thereafter, killed her. Dead body of the victim was found beneath the bed of Munna Pandey (appellant). Her body was undressed. Her urinal portion was swollen and blood had come out. She had also dispersed her waste (potty) and it was also swollen. Police carried the dead body. She claimed to identify both accused persons, which includes appellant. In cross- examination in paragraph - 2, she stated that her father was living in Gujarat. She further stated that Fuchan Pandey is also known as Nawal Kishore Ojha. In paragraph - 7 of her cross-examination, she claimed that she had seen television in the room, where there was a bed, almirah including fan. In paragraph - 8, she further stated that she was visiting the said room and stated that Munna Pandey (appellant) was her neighbour.

In paragraph - 9, she explained that in search of the victim, they had gone to several places including block, chowk, station Sabour etc. In paragraph 12, she stated that Fuchan Pandey and Munna Pandey (appellant) were the full brothers and both brothers were having one room each in their share. She stated in paragraph 12 that Munna Pandey (appellant) was virtually residing somewhere else and usually he was visiting to his room (place of occurrence). She further stated that she was not knowing about the rented house of Munna Pandey (appellant). Again, in paragraph 12 itself, she deposed that earlier there was no complaint against Munna Pandey (appellant). It is necessary to indicate that there was no complaint against the appellant prior to the was not a case of false implication due to any old animosity.

Of course, her attention to her previous statement was drawn in paragraph 13 of her cross-examination, but while the investigating offi cer was being examined, no contradiction was drawn and as such, there is no need to take note of such so called minor inconsistencies. She denied the suggestion that she had given false evidence and falsely implicated the appellant. On examination of entire evidence of P. W. 3, it is evident that though this witness was cross-examined at length, nothing could be extracted to create any doubt on her evidence. 11. ... Munna Pandey (appellant) was also called by villagers. When the villagers asked Fuchan to open lock, Fuchan replied that he was not having key. Villagers thereafter started to assault Munna Pandey and asked him to break the lock. When villagers broke one of the lock, then Munna Pandey (appellant) took out the key and from that key, lock of Fuchan's door was opened, however; the room was closed from inside.

When the door was pushed, it was opened by Pritam and he concealed himself. All villagers entered into the house. Police also arrived. Pritam was apprehended. When Pritam was being assaulted, police had arrived there. Lock of room of Munna was also opened by the villagers. From the room of Munna Pandey (appellant), dead body of the victim was recovered. Age of victim was 11 years old and dead body was kept beneath the bed and police took out the dead body from beneath the bed. The informant started crying. She further stated that the cloth of her daughter from lower portion was removed. She noticed that urinal portion of her daughter was ruptured and she also noticed potty there. She stated that the anus was also ruptured. The face was swollen and on cheek also, there was sign of injury. Villagers thereafter started to assault Munna, Pritam and Fuchan. Pritam, in presence of the Police, stated that he and Munna Pandey both jointly had committed the crime.

This witness stated that her fardbeyan was recorded by the police at the place of occurrence itself and she identifi ed her signature as well as signature of Babloo (P. W. 1) on the fardbeyan. Signature was identifi ed as Ext. 1/1. she claimed to identify Pritam and Munna Pandey (appellant). At the time of cross- examination, it was noticed by the Trial Judge that this witness was very much nervous and also she was repeatedly weeping and this was MUNNA PANDEY v. STATE OF BIHAR 1027 [J. B. PARDIWALA, J. ] the reason that cross-examination on the date i. e. 21. 06. 2016 was deferred. This refl ects regarding the agony suff ered by the mother of the victim. In paragraph 8 of her cross-examination, she stated that Priya (P. W. 3) had informed on telephone that the victim was traceless. She further deposed in paragraph - 8 of her cross-examination that family members of the informant were in visiting term with Munna Pandey and he was also visiting to the house of the informant.

In paragraph -10 of her cross-examination, she stated that she was not knowing anything about the criminal nature of the appellant. She stated that the appellant was her neighbour and this was the reason regarding their conversance. In paragraph - 11 of her cross-examination, she stated that the room, in which, Pritam was present was opened. The lock of room of Munna Pandey (appellant) was opened. Munna Pandey (appellant) and Fuchan Pandey were residing separately. One room was of Fuchan and one room was of Munna Pandey (appellant). She clarifi ed in paragraph - 12 that 10-15 days prior to the occurrence, Fuchan had already gone to his in-laws' house situated at village Shobhapur. In paragraph - 17 of her cross-examination, she reiterated that dead body of her victim daughter was found in the room of Munna Pandey, whereas, Pritam Tiwary had concealed himself in the room of Fuchan. In paragraph 19 and 20 of her cross-examination, P. W.

2 denied the suggestion that lock of two rooms were opened by Fuchan Pandey and denied the suggestion that lock of the room of the Munna Pandey (appellant) was also opened by Fuchan Pandey. In paragraph - 23 of her cross-examination, she said that she may not say exact date of recording fardbeyan, however; she said that she can say the day on which it was recorded. She stated that Rita Madam i. e. P. W. 5 had recorded fardbeyan and it was read over to her, however; she was not recollecting exactly what was the time. In paragraph 26 and 27 of her cross-examination, she stated that after arrival of Fuchan, when he denied regarding possession of the key, then the villagers started assaulting Munna Pandey (appellant). She stated that Pritam was apprehended by Vijay (P. W. 6) Babloo (P. W. 1) and other villagers and they also slapped Pritam. Again in paragraph - 28 of her cross- examination, she stated that the dead body of her daughter was found in the house of Munna Pandey (appellant).

On examination of her 1028 SUPREME COURT REPORTS [2023] 11 S. C. R. entire evidence, including cross-examination, it is evident that every fact relating to the occurrence was reiterated in the cross examination, but nothing could be doubted on her evidence. ××× ××× ××× 16. On examination of entire evidence, it is established that the learned Trial Judge has rightly held the appellant guilty for commission of off ence under Sections 302 and 376 of the Indian Penal Code. The learned Trial Judge, after convicting the appellant by its judgment dated 02. 02. 2017, deferred the date of sentence and after reasonable time, on 23. 02. 2017, the learned Trial Judge, after hearing both the parties and balancing the aggravating and mitigating circumstances, had come to the conclusion that it was a fi t case for imposing death sentence and thereafter, death sentence was imposed and it was referred to this Court under Section 366 of the Cr. P. C. for its confi rmation. 17. The evidence of P. W.

3 is very much specifi c that on the date of occurrence in the morning, this appellant had reached the house of the informant, whereas, at that very time, P. W. 3 was preparing food. In her presence, this appellant asked, rather lured the victim to accompany him for witnessing T. V. programme inside his house. At fi rst instance, P. W. 3, elder sister of the victim, asked that she can go only after taking meal, but that too was prevented by the appellant and he (appellant) insisted and only thereafter, the victim, who was aged about 11 years, had gone with the appellant in the garb of witnessing T. V. programme in his house. In the evidence of P. W. 2 informant/mother of the victim, this fact has come that appellant was neighbour of the informant and they were on visiting term.

Meaning thereby that at the time, when the appellant had called the victim, there was nothing in the mind of the elder sister that her younger sister aged about 11 years will be raped by the appellant, who obviously on the date of occurrence was neither young nor very old. From the judgment of conviction and sentence, it appears that his (appellant) age was assessed as 50 years. Meaning thereby that beyond stretch of imagination, the elder sister was not having any apprehension that her minor sister can be raped by a person, who was neighbour and aged about approaching 50 years. This was the reason that victim was allowed to move with the appellant. MUNNA PANDEY v. STATE OF BIHAR 1029 [J. B. PARDIWALA, J. ] The victim, who was aged about 11 years, was also oblivious of the fact that as to what was occurring in the mind of the appellant. After she was carried to the room and within few hours, when P. W.

3 (elder sister of the victim) went to the house of the appellant, she noticed that this appellant after locking the door was coming out. This was not the end, even on inquiry, this appellant gave false declaration that victim had already left after witnessing T. V. programme. Again the criminal mind of the appellant was operating and this was the reason that even though, he had already committed rape and murder of 11 years old girl and concealed the dead body inside his room, he gave false information to the elder sister of the victim (P. W. 3). Since the victim could not be traced by P. W. 3 (Priya), the P. W. 3 who was aged about 15-16 years old, and this was the reason that she was not in a position to take any further decision and she immediately ranged her mother (informant), who had gone to village Jamunia, which was about 22 km. away from the village Sabour.

She informed her mother regarding missing of the victim and she also explained regarding other circumstances, which were suffi cient to raise suspicion on the appellant. Thereafter, the informant from Jamunia came on a motorcycle with son of her late sister P. W. 1 (Babloo Saw) and all of them again went to the house of the appellant and this time they noticed that house as well as outer gate of the appellant was locked and there was none, then the search was made for the victim. Subsequently, villagers called the appellant, who disclosed that he was not having the key and he pretended, as if, key was left with his brother Fuchan Pandey, who was away and staying in his in-laws house. This time again this appellant gave false information. By way of searching, day time had come to end of the day and in the evening, informant side and villagers noticed some light coming from the house of the appellant, then suspicion got strengthened.

Thereafter, again the villagers called the appellant for opening the door. On his denial, the villagers told that they will break the lock of the door, in that event, this appellant threatened the villagers that if lock is broken, he will fi le a case of dacoity against them. All those things depict about the criminal mind of the appellant. Only in the next morning, when his brother Fuchan arrived, who was telephonically asked to come, and he disclosed that he was not having the key, the villagers started 1030 SUPREME COURT REPORTS [2023] 11 S. C. R. to assault the appellant and one lock was broken and only thereafter, this appellant took out the key. Ofcourse subsequently, the room, which was said to be in possession of the appellant, was opened and beneath the bed of the appellant, dead body in ruptured condition of the victim was found. Everything has already been discussed hereinabove, as was explained by the informant/P. W. 2, P. W. 3/Priya and P. W. 1/Babloo.

" (Emphasis supplied) 21. Thus, all throughout, the High Court proceeded on the footing that it was the appellant convict who came to the house of the victim in the morning of 31. 05. 2015 and lured her to come to his house to watch TV. The High Court took the view that since the dead body of the victim was recovered from the room owned by the appellant and he was seen by the PW 3 Priya Kumari locking the door attached to his house, it could be none other than the appellant who could be said to have committed the crime. 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. FSL REPORT NOT OBTAINED: 22.

We noticed few very serious lapses in the entire investigation and, more particularly, the oral evidence of the investigating offi cer PW 5 Rita Kumari disturbed us a lot. The investigating offi cer in her cross examination deposed that in accordance with the order dated 29. 06. 2015 a letter on behalf of the offi cer-in-charge of the Police Station, Sabour, was fi led before the Trial Court seeking permission to send the muddamal articles to the Forensic Science Laboratory (FSL), Patna for examination. However, the PW 5 Rita Kumari in her cross examination before the Trial Court admitted that following the instructions of her senior offi cers, she did not take any steps to procure FSL report. Who are these senior offi cers of PW 5 and why they instructed the PW 5 not to procure the FSL report should have been a subject matter of inquiry by both, the State as well as the trial court. 23. The aforesaid lapse is just a tip of the iceberg.

We are at pains to state that it is a very serious fl aw on the part of the investigating offi cer and that too in such a serious matter. MUNNA PANDEY v. STATE OF BIHAR 1031 [J. B. PARDIWALA, J. ] FAILURE TO CONDUCT MEDICAL EXAMINATION 24. One another serious fl aw in the present case on the part of the investigating offi cer that has come to our notice is the failure to subject the appellant to medical examination by a medical practitioner. No explanation, much less any reasonable explanation, has been off ered for such a serious fl aw on the part of the investigating offi cer. 25.

Section 53(1) of the CrPC enables a police offi cer 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 aff ord such evidence, whenever a person is arrested on a charge of committing an off ence of such a nature that there are reasonable grounds for believing that an examination of his person will aff ord evidence as to the commission of an off ence. Section 53(1) reads as follows:- "Section 53. Examination of accused by medical practitioner at the request of police offi cer.

--(1) When a person is arrested on a charge of committing an off ence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will aff ord evidence as to the commission of an off ence, it shall be lawful for a registered medical practitioner, acting at the request of a police offi cer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may aff ord such evidence, and to use such force as is reasonably necessary for that purpose. " 26. By Act 25 of 2005, a new Explanation was substituted under Section 53, in the place of the original Explanation. The Explanation so substituted under Section 53 by Act 25 of 2005 reads as follows:- "Explanation.

--In this section and in Sections 53A and 54-- (a) "examination" shall include the examination of blood, blood stains, semen, swabs in case of sexual off ences, sputum and sweat, hair samples and fi nger nail clippings by the use of modern and scientifi c techniques including DNA profi ling and such other tests which the registered medical practitioner thinks necessary in a particular case; 1032 SUPREME COURT REPORTS [2023] 11 S. C. R. (b) "registered medical practitioner" means a medical practitioner who possess any medical qualifi cation as defi ned in clause (h) of Section 2 of the Indian Medical Council Act, 1956 (102 of 1956) and whose name has been entered in a State Medical Register. " 27. Simultaneously with the substitution of a new Explanation under Section 53, Act 25 of 2005 also inserted a new provision i. e. Section 53A. Section 53A reads as follows:- "Section 53A. Examination of person accused of rape by medical practitioner.

--(1) When a person is arrested on a charge of committing an off ence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will aff ord evidence as to the commission of such off ence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the off ence has been committed by any other registered medical practitioner acting at the request of a police offi cer not below the rank of a Sub-Inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose.

(2) The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely-- (i) the name and address of the accused and of the person by whom he was brought, (ii) the age of the accused, (iii) marks of injury, if any, on the person of the accused, (iv) the description of material taken from the person of the accused for DNA profi ling, and (v) other material particulars in reasonable detail. (3) The report shall state precisely the reasons for each conclusion arrived at. MUNNA PANDEY v. STATE OF BIHAR 1033 [J. B. PARDIWALA, J. ] (4) The exact time of commencement and completion of the examination shall also be noted in the report.

(5) The registered medical practitioner shall, without delay, forward the report to the investigating offi cer, who shall forward it to the Magistrate referred to in Section 173 as part of the documents referred to in clause (a) of sub-section (5) of that section. " 28. A three-Judge Bench of this Court in Chotkau v. State of Uttar Pradesh, (2023) 6 SCC 742, had the occasion to consider Sections 53, 53A and 164 of the CrPC in details. This Court observed in para 80 to 83 as under:- "80. After saying that Section 53-A is not mandatory, this Court found in para 54 of the said decision that the failure of the prosecution to produce DNA evidence, warranted an adverse inference to be drawn. Para 54 reads as follows : (Rajendra Pralhadrao Wasnik case [Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 SCC 460 : (2019) 4 SCC (Cri) 420], SCC p. 485) "54.

For the prosecution to decline to produce DNA evidence would be a little unfortunate particularly when the facility of DNA profi ling is available in the country. The prosecution would be well advised to take advantage of this, particularly in view of the provisions of Section 53-A and Section 164-ACrPC. We are not going to the extent of suggesting that if there is no DNA profi ling, the prosecution case cannot be proved but we are certainly of the view that where DNA profi ling has not been done or it is held back from the trial court, an adverse consequence would follow for the prosecution. " 81. It is necessary at this stage to note that by the very same Amendment Act 25 of 2005, by which Section 53-A was inserted, Section 164-A was also inserted in the Code. While Section 53-A enables the medical examination of the person accused of rape, Section 164-A enables medical examination of the victim of rape.

Both these provisions are somewhat similar and can be said approximately to be a mirror image of each other. But there are three distinguishing features. They are: 1034 SUPREME COURT REPORTS [2023] 11 S. C. R. 81. 1 Section 164-A requires the prior consent of the woman who is the victim of rape. Alternatively, the consent of a person competent to give such consent on her behalf should have been obtained before subjecting the victim to medical examination. Section 53-A does not speak about any such consent. 81. 2 Section 164-A requires the report of the medical practitioner to contain among other things, the general mental condition of the woman. This is absent in Section 53-A. 81. 3 Under Section 164-A(1), the medical examination by a registered medical practitioner is mandatory when, "it is proposed to get the person of the woman examined by a medical expert" during the course of investigation. This is borne out by the use of the words, "such examination shall be conducted".

In contrast, Section 53-A(1) merely makes it lawful for a registered medical practitioner to make an examination of the arrested person if "there are reasonable grounds for believing that an examination of his person will aff ord evidence as to the commission of such off ence". 82. In cases where the victim of rape is alive and is in a position to testify in court, it may be possible for the prosecution to take a chance by not medically examining the accused. But in cases where the victim is dead and the off ence is sought to be established only by circumstantial evidence, medical evidence assumes great importance. The failure of the prosecution to produce such evidence, despite there being no obstacle from the accused or anyone, will certainly create a gaping hole in the case of the prosecution and give rise to a serious doubt on the case of the prosecution. We do not wish to go into the question whether Section 53-A is mandatory or not.

Section 53-A enables the prosecution to obtain a signifi cant piece of evidence to prove the charge. The failure of the prosecution in this case to subject the appellant to medical examination is certainly fatal to the prosecution case especially when the ocular evidence is found to be not trustworthy. 83. Their failure to obtain the report of the Forensic Science Laboratory on the blood/semen stain on the salwar worn by the victim, compounds the failure of the prosecution. " MUNNA PANDEY v. STATE OF BIHAR 1035 [J. B. PARDIWALA, J. ] 29. Thus, medical examination of an accused assumes great importance in cases where the victim of rape is dead and the off ence is sought to be established only by circumstantial evidence. FURTHER STATEMENT UNDER SECTION 313 CrPC 30.. The further statement of the appellant convict was recorded under Section 313 CrPC. We were shocked to see the manner in which the Trial Court recorded the further statement of the appellant convict under Section 313 CrPC.

In all, four questions were put to the appellant convict to enable him to explain the incriminating circumstances pointing towards his complicity in the alleged crime. The questions are as under:- "(1) Question :- Have you heard the evidence of the witnesses? Answer :- Yes (2) Question :- There is evidence against you that on 31. 5. 15, you took away X to your house by calling her, on pretext of watching TV. What have you got to say? Answer :- No Sir. (3) Question :- There is also evidence against you that you escaped after locking your house and later on the lock was broken and then the dead body of X was recovered lying under the wooden cot. What have you got to say in this regard? Answer :- No Sir. (4) Question :- It has also come in evidence against you that you in association with Preetam committed murder of X after raping her. What have you got to say? Answer :- No sir, it is wrong. " 31.

However, for the purpose of holding the appellant herein guilty of the alleged crime, the Trial Court looked into the following additional circumstances:- (a) The circumstance of PW 3 seeing the Appellant lock the grill and the door of his room. (b) The circumstance that the Appellant gave false information to PW 3 that the victim had already left after watching TV. (c) The circumstance of the accused refusing to open the door as he did not have the key. (d) The circumstance of the Appellant giving the keys to the villagers after he was assaulted. (e) The circumstance of the alleged extra-judicial confession made by the co-accused Pritam Tiwari implicating the Appellant. 32. Indisputably, none of the aforesaid circumstances relied upon by the Trial Court were put to the appellant convict so that he could off er a proper explanation to the same. 33.

Having regard to the fact that an innocent girl of 10 years was lured, raped and brutally murdered, we looked into the entire record very closely. Our mind got clouded with suspicion. Ultimately, we noticed something very shocking. The shocking aspect, we shall discuss about hereinafter, if would have gone unnoticed at our end too, then it would have led to a serious miscarriage of justice. 34. We thought fi t to call for the papers of the charge sheet and look into the FIR lodged by PW 2 Kiran Devi; the further statement of PW 2 recorded under Section 161 of the CrPC in furtherance of the FIR lodged by her and the police statements of PW 1 Babloo Saw, and PW 3 Priya Kumari, the elder sister of the victim and elder daughter of PW 2 (fi rst informant). Reading the FIR and the police statements of the aforesaid witnesses left us aghast. 35.

We fi rst start with the FIR lodged by PW 2 which reads thus:- "Fardbayan of Kiran Devi aged about 40 years w/o Arvind Sah, at Thateri Tola, Police Station- Sabour, District Bhagalpur recorded by S. I. cum S. H. O. Rita Kumari Sabour P. S. in house of Naval Kishore Ojha @ Fuchan Pandey dated 01-06-15 at 12:45 P. M. My name is Kiran Devi, aged about 40 years old, w/o Arvind Sah, Rio Thateri Tola Sabour Police Station- Saber, District- Bhagalpur. I am giving this statement without any pressure, in presence of the Incharge of Sabour Police Station today on 01 June, 2015 at the house of Naval Kishore (Fucchan Pandey) that yesterday on 31st May, 2015, I went to my late elder sister Sakila Devi's home situated in Jamunia Parbatta. In the meantime, at about 12 pm, my elder daughter Priya MUNNA PANDEY v. STATE OF BIHAR 1037 [J. B. PARDIWALA, J. ] Kumari informed me through telephone that my younger daughter, X is nowhere to be found. Then I left for Sabour immediately.

When I reached home, my elder daughter Priya informed me that X went to watch TV at Munna Pandey's home. When she didn't come back till 11 am then my elder daughter called me. When I went to Munna Pandey's home to fi nd X, I found that Munna Pandey's house was locked. We started searching for X along with our relatives but X was nowhere to be found. When Munna Pandey was asked to open the lock, he said that he docs not have the keys. Then I called Munna Pandey's brother Fucchan Pandey who was at his in-law's house (sasural). Today on 1st June, 2015, Naval Kishore Pandey @ Fucchan Pandey came at around 12 pm and opened the lock of the room where it was found that Pritam Tiwari, S/o Dilip Tiwari R/o Shobhapur, Police Station: Rajmahal, District was hiding inside the room. The room was locked from outside. When Munna Pandey's room was opened, the dead body of my daughter was found under the bed.

I am certain that Pritam Tiwari, s/o Dilip Tiwari, r/o Shobhapur, Police Station: Rajmahal District Sahebanj and Munna Pandey s/o Late Bir Bahadur Pandey r/o Thatcri Tola, Police Station: Sabour, District Bhagalpur, jointly conspired and had committed rape on my 11 y/o daughter (X) and after that strangulated her and killed her and then hid her dead body in the room. This is my statement which I heard and understood after reading them I found the above statements correct and I am putting my signature by my own will in the presence of my sister's son, Bablu Sah s/o Satish Sah r/o Jamunia, Toana Parvata (Navaghchiya) Bhagalpur. " (Emphasis supplied) 36. The further statement of Kiran Devi recorded by the police under Section 161 CrPC reads thus:- "Further investigation of this case, the police re-recorded the statement of complainant of this case - Kiran Devi, aged about 40 years, W/o - Arvind Sah, R/o - Thatheri Tola, PS - Sabour, District - Bhagalpur.

Concurring with the FIR, she stated in her statement that in the neighborhood in front of her house lived two brothers - Munna Pandey 1038 SUPREME COURT REPORTS [2023] 11 S. C. R. and Naval Kishore Ojha @ Fucchan Pandey. They both have share in one room each. Frequent quarrels used to take place between the two brothers, due to which Naval Kishore Ojha @ Fucchan Pandey used to live at his in-law's place (sasuraal) and Munna Pandey, Sabour used to live near Kali Sthan in a rented house. Fucchan Pandey had handed over his room to his brother-in-law (wife's brother) for its maintenance. Pritam Tiwary worked in a cloth shop. People from the cloth shop also used to visit the house of Fucchan Pandey occasionally. There was a TV in the house of Fucchan Pandey. Children from the neighborhood also used to visit his house to watch the TV. On date 31. 05. 15, I (Kiran Devi) had gone to the house of my late sister, Shakila Devi in Jamunia Parvatta. On date 31. 05.

15 at about 12:00, her elder daughter Priya Kumari informed her on telephone that her younger daughter X was nowhere to be found. She immediately left from there. After her arrival at Sabour in her house, her elder daughter informed that her younger daughter X had stated that she was going to the house of Pritam Tiwary to watch TV. Pritam Tiwary had called X to watch TV at his home at around 9 o'clock. When X did not come home till eleven o'clock, her elder daughter Priya went to the house of Pritam Tiwary to search for her. At that time Pritam Tiwary was locking the door. When she asked the whereabouts of X from Pritam Tiwary, he told that she was not there. After that she went to a mango orchard to look for her. She was not found there also. Then Priya called all her relatives and went to search her, but could not fi nd her anywhere. Even after such a hectic search, X was nowhere to be found. So we all collectively decided to fi nd Pritam Tiwary who was also not to be found.

The villagers became suspicious so they all called Munna Pandey and asked him to open the gate. But Munna Pandey declined to open the gates and said that he did not have the keys to the lock. The local villagers then telephoned Naval Pandey @ Fucchan Pandey. At that time he was at his in-law's place at Shobhapur. When Munna Pandey declined to hand over the keys, everybody became suspicious that Pritam Tiwary was not there and it was very much possible that he (Pritam Tiwary) did some occurrence with her daughter. On 01- 06-2015, Naval Kishore Ojha @ Fucchan Pandey came with his wife and children and opened the locks of the grill at about 12:00 noon. MUNNA PANDEY v. STATE OF BIHAR 1039 [J. B. PARDIWALA, J. ] When lock was opened, all the villagers entered the verandah and when looked through the window in the room of Fucchan Pandey, found Pritam Tiwary sleeping on the palang (wooden cot) in the room.

When Fucchan Pandey opened the lock of his room, Pritam Tiwary started hiding himself under the wooden bed. The villagers took him out from the bed and started to ask the whereabouts of X. Initially he refused to give any information. But when all the people asked him strictly, he said that X (deceased) was in the house of Munna Pandey. And when all the people looked inside the room after breaking the locks of the doors of Munna Pandey, they found the dead body of eleven year old daughter X lying below the palang (wooden cot) in the room. When I looked at my daughter, she was already dead. We found her face extremely swollen, both the lips swollen, blood stained wound was seen on her right cheek. Her clothes were in (illegible) manner. The private parts of deceased X were swollen and blood stained wound and anus swollen with stool sticking to it, were found.

He further informed that both the accused persons named in the FIR - (1) Pritam Tiwary, S/o - Dilip Tiwary, R/o - Shobhapur, PS - Raj Mahal, District - Sahebganj, State - Jharkhand, present address Naval Kishore Ojha, Thatheri Toal - Sabour, PS - Sabour, District - Bhagalpur, (2) Munna Pandey, S/o Late Bir Bahadur Pandey, R/o - Thatheri, Toal - Sabour, PS - Sabour, District - Bhagalpur raped her eleven year daughter X (deceased) and with a view to remove the evidence. strangled her and killed her and had hid the dead body below the palang (wooden cot). The villagers informed the police station. On receiving the information police came and began their investigation. Besides this, she did not tell any other important facts. " (Emphasis supplied) 37.

The police statement of PW 1 Babloo Saw reads thus:- "In further investigation of this case recorded the witness statement of Babloo Sah, s/o Satish Sah, r/o Jamunia, PS - Parvatta, District - Khagaria, with complete support to the occurrence in his statement informed that deceased X is his aunt's (her mother's sister) daughter. On date 31. 05. 15 mother of the deceased came to his house. Priya, the elder sister of the deceased X, informed her mother over telephone 1040 SUPREME COURT REPORTS [2023] 11 S. C. R. that Pritam Tiwary, brother-in-law (wife's brother) of her neighbor Naval Kishore Ojha called X to watch television at his house and that she had not returned home. On information, he along with his mausi (mother's sister), Kiran Devi came to Sabour and along with family members and with the help of local villagers did exhaustive search in the nearby places, but could not fi nd X anywhere.

During the course of search, when I went to the house of Naval Kishore Ojha, I saw that his house is locked. Few people suspected that Pritam Tiwary had taken her somewhere or is inside the room, because the light of bulb was emitting light from his house. Then all the people called Munna Pandey and asked him to open the lock to which he declined and made an excuse that he does not possess the key. Then the suspicion of all the people grew more. Then villagers informed Naval Kishore Ojha @ Fucchan Pandey, brother of Munna Pandey about the occurrence of the incident on telephone. At that time of call Fuchchan Pandey was at his in-laws house at Shobhapur. He was not living here since last two months. On date 01. 06. 15 at about 12:00 noon, Fucchan Pandey came along with his family and opened the lock of the house and saw Pritam Tiwary hiding in his house. When local people strictly enquired about the deceased girl X, he informed that X (dec